Sohio Chemical Co.

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time off from his night shift so he could be rested for a national board meeting the next morning. May later informed Foddrill his wife had called to tell him of his baby's illness. Foddrill , who needed his services that night , told May to bring back a doctor's certificate upon his return from home where he went for his evening meal. May reported back 18 minutes late without a certificate and worked the remainder of his shift . He was not reprimanded for coming back late. There is no suggestion in the record that Foddrill denied May 's request for unlawful reasons. May's father is an official of a union which had nothing to do with the Respondent's employees . It would be sheer speculation to find that for this reason he was denied time off. The allegation of discrimination against him is not sustained. In sum, while the record is replete with evidence of the Respondent 's hostility to unionization and its coercive efforts to prevent the Teamsters or the Steelworkers from winning the December 1960 or February 1961 elections I am convinced, find, and conclude that the record does not preponderate in favor of a finding that the Respondent committed any of the unlawful actions described in the complaint. I therefore recommend dismissal of the complaint in its entirety. Sohio Chemical Company, Acrylonitrile Plant and Oil, Chemical and Atomic Workers International Union , Local 7-626 Sohio Chemical Company, Nitrogen Plant and Oil, Chemical and Atomic Workers International Union , Local 7-626. Cases Nos. 8-CA-2682 and 8-CA-2683. March 26, 1963 DECISION AND ORDER On August 14, 1962, Trial Examiner Stanley Gilbert issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, but recommending that no remedial order issue, as set forth in the attached Intermediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, the General Counsel filed exceptions to the Intermediate Report together with a supporting brief, and the Respondent filed a brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' [The Board dismissed the complaint.] I Contrary to our dissenting colleague, the issue here is not whether the Union had a statutory right to grieve, but whether the Union had a right to invoke the grievance procedure set forth in the contract between the Union and the Respondent Company Everyone, including our dissenting colleague, seems to agree that the Respondent was not required "to deal with such grievances through the grievance procedure " Yet what is overlooked by our dissenting colleague is the fact that the Union here sought to process the grievances under the contract Accordingly, this decision does not represent a de- parture from established precedents , and we also believe that it will promote rather than discourage collective-bargaining practices The Union's presence at later stages in the 141 NLRB No. 72. SOHIO CHEMICAL COMPANY, ACRYLONITRILE PLANT 811 MEMBER FANNING, dissenting : The essential facts were stipulated by the parties. The Union filed four grievances which were signed by an official of the Union and not by an aggrieved employee. The Respondent refused to answer the grievances and deemed them invalid under the current contract be- cause they were not signed by an employee or an employee and his steward. The current agreements between the parties have a four-step griev- ance procedure culminating in binding arbitration. The first step provides that the "employee or the employee and his steward" shall present grievances. It is silent as to whether or not the Union can file a grievance. The record further reveals that in the course of precontract negotiations in 1957, involving a prior contract, the Union proposed a grievance clause which stated that "the Union or the ag- grieved employee and the steward" could initiate the grievance proce- dure. The 1957 contract, as executed, contained the same grievance provisions as the current contracts, and there is nothing in the record to show why the Union's proposed grievance clause was not adopted nor does the record indicate how the inclusion of the agreed-upon clause came about. On these bare facts the Trial Examiner found, and the majority agrees, that the Union had impliedly waived its right to file grievances on behalf of employees. The dispute here involves essentially the Union's contention that it can, under established law, file grievances in its own right. The Re- spondent contends that in view of the precontract negotiations between the parties and the resulting bargaining agreements the Union has waived its right to file grievances directly, and that the dispute is more appropriately a matter of arbitration within the terms of the contract. The key to a proper decision in this case lies in the readiness with which this Board will find an "implied waiver" of a statutory right from ambiguous and inconclusive terms of a contract. and only frag- mentary evidence relating to the purpose of their incorporation in the contract. Up to now, the Board has been unwilling to infer a waiver absent a clear and unmistakable showing that the waiver ac- tually was intended? It has consistently held that the mere abandon- ment of -a bargaining proposal or demand, without supporting evidence that the demand was fully discussed, fully explored, and consciously grievance machinery amply protects the Union's bargaining status Moreover, we are finding, in agreement with the Trial Examiner, that Respondent 's failure to afford the Union an opportunity to be present in the adjustment of grievances was unlawful The omission of a remedial order on this aspect stems from our considered judgment that in the circumstances of this case the finding alone will effectively deter a recurrence. 2 See Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953 ; Timken Roller Bear- ing Company, 138 NLRB 15; Gulf Atlantic Warehouse Co., 129 NLRB 42; Speidel Corpo- ration, 120 NLRB 733, 740--741 ; California Portland Cement Company , 101 NLRB 1436, 1437-1438; Otis Elevator Company, 102 NLRB 770, enf. denied 208 F 2d 176 (C.A. 2) ; Boston Record-American-Advertiser Division-The Hearst Corvoration , 115 NLRB 1095. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD yielded, is an insufficient basis on which to find the waiver of a statu- tory right.' No such showing has been made in this case, and I can only view the majority's decision that a waiver occurred as a serious encroachment upon the protection heretofore afforded to employees and their statutory representative. I fail to see to what purpose such an encroachment has been made. As the Circuit Court of Appeals for the Sixth Circuit observed with respect to a closely related question : 4 Nor do we see logical justification in the view that in entering into a collective bargaining agreement for a new year, even though the contract was silent upon a controverted matter, the union should be held to have waived any rights secured under the Act . . . Such interpretation would seem to be disruptive rather than fostering in its effect upon collective bargaining, the national desideratum disclosed in the broad terms of the first section of the National Labor Relations Act.... It is disruptive of collective bargaining because it requires a union, perforce, to press for its maximum initial demand, lest its compromise agreement be viewed as a waiver of all statutory rights embodied in the demand but not finally incorporated in the contract. Impasse, rather than agreement, is the likely result of such "bargaining." Moreover, in the instant case, the majority's willingness to infer a waiver of the Union's statutory right to present a grievance on any matter as to which an employee can file n grievance involves them in inconsistent and contradictory findings as to what is necessary to prove a waiver. The Union had initially proposed a grievance procedure to be initiated by the filing of a grievance by either the Union or the employee and his steward. The provision, as it appeared in the con- tract, eliminated the reference to the Union. The majority finds that the Union thereby waived its right to present any grievance which involves an "ascertainable aggrieved employee." At the same time, the majority adopts the Trial Examiner's finding that the Union has not given up its right to present grievances which do not involve an "ascertainable aggrieved employee," and to have them considered out- side the contract grievance procedure. But if the deletion of the ref- erence to the Union is a sufficient basis for finding that the Union has waived its right to present a grievance involving an "ascertainable ag- grieved employee," even outside the grievance procedure, why does not such deletion also affect the Union's right to present other grievances 3 The Press Company, Incorporated, 121 NLRB 976 , Tide Water Associated Oil Com- pany, 88 NLRB 1096 ; The Jacobs Manufacturing Company, 94 NLRB 1214 ; Nash-Finch Company, 103 NLRB 1695, enf denied 211 F 2d 622 ( CA 8) ; International News Service Division of The Hearst Corporation, 113 NLRB 1067 * N.L R.B v. J. H. Allison & Company, 165 F. 2d 766 , 768; cert denied 335 U.S 814; rehearing denied 335 U S 905, enforcing a Board Order that Allison & Co furnish the representative of its employees with certain information even though it had sought un- successfully to have a clause incorporated in the contract requiring Allison & Co to furnish the information SOHIO CHEMICAL COMPANY, ACRYLONITRILE PLANT 813 in the same way? If the Union's eligibility to file grievances had been retained in the contract, the Union could initiate any grievance whether it involved an "ascertainable aggrieved employee"' or not, and could have such grievances processed through the four-step grievance pro- cedure. Indeed, in such circumstances the Union could probably not avoid the grievance procedure in seeking settlement of grievances. While I agree that, by failing to achieve agreement on its proposal, the Union failed to secure the right to have grievances it presented processed through the grievance procedure, I cannot agree that it gave up its right to present such grievances outside that procedure. I certainly cannot agree that the Union waived its right as to one class of grievances and not as to another class. Parity of reasoning demands that if the Union can now present grievances not involving "ascertainable aggrieved employees" and can require that the Re- spondent bargain with it concerning such grievances outside of the grievance procedure, it has the same right with respect to grievances involving "ascertainable aggrieved employees." The Union proposed a provision which would have channeled both classes of grievances through the grievance procedure. In this it failed, but its failure can- not mean waiver as to one class, and not as to the other. For the foregoing reasons, I find that Respondent violated Section 8 (a) (5) by refusing to bargain concerning the merits of the grievances presented by the Union as alleged in the complaint. I do not hold that Respondent was required to deal with such grievances through the grievance procedure. I do hold that it was required to consider such grievances and to bargain concerning their disposition. I would, therefore, issue an appropriate order to remedy the violation. More- over, even were I to agree with the majority premise that the Union had waived its right to bargain concerning the grievances involved, I would issue an order requiring the Respondent to cease adjusting grievances without affording the Union an opportunity to be present. This is not a trivial violation, nor can I view it as too isolated in charac- ter to warrant a remedial order, for it is apparent that the Respondent views its contract as giving it the right to adjust grievances in such a manner. In these circumstances, and as all Board Members agree that such action violates Section 8 (a) (5), I believe it is appropriate to issue an order which will prevent such conduct in the future. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The Oil, Chemical and Atomic Workers International Union, Local 7-626 (here- inafter referred to as the Local) having filed a charge in Case No. 8-CA-2682 on January 19, 1962, and in Case No. 8-CA-2683 on the same date, which charges were amended on April 9, 1962, an order consolidating said cases and the complaint herein 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were issued on April 20, 1962.1 In essence, it is alleged that the Sohio Chemical' Company (hereinafter referred to as the Respondent or Company) violated Section 8(a) (5) and (1) of the Act by refusing to process grievances filed by officers of the Local and by adjusting the subject matter of such grievances with individual em- ployees without affording an opportunity to the Local to have a representative present. In its answer, Respondent alleged that the Oil, Chemical and Atomic Workers International Union (hereinafter referred to as the International) was the exclusive representative of the bargaining units in the two plants involved , not the Local, but admitted that for the several past years it had bargained with the Local as agent of the International. It denied that it had violated the Act by refusing to process the grievances on the ground that the grievances had not been filed in accordance with the grievance procedure provided in the contract between the Company and the International and Local (collectively referred to in the contract as the "Union"). The International and the Local will be referred to collectively as the "Union," in accordance with the practice of the parties as disclosed by the record. It further denied that its conduct in adjusting the grievances with the individual employees was violative of the Act, and asserted that its conduct was consistent with the grievance procedure A hearing was held before Trial Examiner Stanley Gilbert at Lima, Ohio, on June 12, 1962, at which the parties stipulated all the facts which any one, or all of them, considered relevant to the issues raised. The General Counsel and Respondent filed briefs within time designated therefor. Upon consideration of the entire record, including the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent is, and has been at all times material herein, a corporation organized and existing by virtue of the laws of the State of Ohio, with its office and principal place of business located in Lima, Ohio, where it is engaged in the manufacture and sale of chemical products . Respondent, in the course and conduct of its operations, annually ships finished products valued in excess of $50,000 directly to points outside the State of Ohio. As is admitted by Respondent , it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATIONS INVOLVED As is admitted by Respondent , both the Local and International are labor organiza- tions within the meaning of Section 2(5) of the Act III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues In their briefs the General Counsel and Respondent are substantially in accord as to what they consider the issues to be. In essence, they are as follows: 1. Whether the Local and International are jointly the bargaining representative of the employees for the pertinent units in the two aforementioned plants or whether the International is solely. 2. Whether the Company by rejecting grievances filed under the contract grievance procedure by officials of the Local (for the reason that they had not been filed by the aggrieved employees or by such employees and their shop stewards) violated Section 8(a)(5) and (1) of the Act. 3. Whether by adjusting the errors complained of in two of the aforesaid grievances with the aggrieved employees without giving a representative of the Local the opportunity to be present the Company violated Section 8(a)(5) and (1) of the Act. B. Summary of the stipulated facts On January 17, 1957, the International was initially certified by the Board as the bargaining agent for a designated unit in the Nitrogen Plant of the Respondent and a contract was entered into between the Sohio Petroleum Company (the predecessor of Respondent in the operation of the plant) and the International and Local (being 'The complaint was amended on April 27, 1962, by adding the allegation that "second amended charges" were filed by the Local on April 23, 1962 SOHIO CHEMICAL COMPANY, ACRYLONITRILE PLANT 815 jointly referred to therein as the "Union") .2 The present contract with respect to the Nitrogen Plant (Case No. 8-CA-2683), was entered into on February 17, 1961, between the Respondent and the International and Local which were also jointly referred to therein as the "Union." Both the original and the present contract contain provisions with respect to a grievance procedure leading ultimately to arbitration, the first two steps in the latter are substantially similar to those which were in the former. The present contract contains the following language with respect to the initiation of grievances: In the adjustment of complaints and grievances which may arise, the employee or employees shall present the matter in the following manner: Step 1: The employee or the employee and his steward shall present the matter in writing within ten (10) calendar days of the occurrence or the knowledge of the existence of the complaint or grievance, to the aggrieved employee's immedi- ate supervisor and attempt to arrive at a satisfactory settlement. A written answer shall be given by the immediate supervisor to the aggrieved employee and the steward within ten (10) calendar days of the filing of the grievance. The present contract with respect to the Acrylonitrile Plant (Case No. 8-CA-2682) is between the same parties as that with respect to the Nitrogen Plant (with the Inter- national and Local also jointly referred to therein as the "Union")? It contains the same provisions with respect to a grievance procedure. 1. The grievances in Case No. 8-CA-2682 (Acrylonitrile Plant) On September 29, 1961, Leo Brown, vice chairman of the Local, Acrylonitrile group, filed a grievance as a union officer, protesting the method by which Respond- ent had filled a vacancy on the third shift September 22, 1961. On October 6, 1961, R. R. Klingler, operating foreman, Acrylonitrile Plant, responded in writing to the grievance, informing Brown that he, Klingler, did not feel it was a valid grievance because it was "in violation of the Contract, Article X, Section 1." 4 However, Klingler also stated: The vacancy in question was filled according to instruction issued by Mr. W. J. Springmeier [Process Foreman, Acrylonitrile Plant]. I have consulted with Mr. Springmeier who stated that he is aware that he filled the vacancy erroneously and that he has since contacted the parties, namely Messrs. B. E. Taylor and B. D. Browning, and made arrangements with them for a procedure for compensation. Because the error related to a failure to call up the low men on the overtime list, the compensation could have taken the form of permitting the men to come in at any time in the future and work 4 hours overtime in order to put in the time they should have been permitted to work, or they could be given 4 hours' pay at time and one-half without having to work. Brown carried his September 29, 1961, grievance to the second step of the griev- ance procedure. On October 17, 1961, W. J. Springmeier notified Brown that Re- spondent was refusing to answer his second step grievance because it was filed in violation of the agreement. On November 9, 1961, Ned Ford, group chairman, Acrylonitrile group, notified G. E. King, general plant superintendent, that the "Union" was taking the grievance filed by Brown to the third step of the grievance procedure, as outlined in the agreement. At the November 14, 1961, "union-company committee" meeting, Brown's grievance was discussed. The Company advised the "Union" that it had adjusted the error by paying the two aggrieved employees time and one-half for the 4 hours they would have worked had the error not been com- mitted. The Company maintained its position that the filing of the grievance was not in compliance with the contract and the "Union" maintained that a "union officer may present a grievance." On October 25, 1961, Ford filed a grievance protesting the answer given by Springmeier to Brown at the second step of Brown's grievance. Respondent re- sponded to Ford's grievance at both the first and second steps by stating that Re- 2 The description of the unit has been altered since the original certification, but it is not material to the issues herein. Originally the plant was operated by the Sobio Petroleum Company. However, in 1959 operation of the plant was transferred to the Respondent and the certification was amended to conform to the change. 8 The International was certified by the Board with respect to the Acrylonitrile Plant on April 7, 1960. 4 Apparently referring to the provision that the grievance shall be filed by "the em- ployee or the employee and his steward." 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent did not consider it to be a valid grievance , and that Respondent would not answer it. Ford then notified King that the "Union " was taking his grievance to the third step . At the December 19, 1961 , union-company committee meeting, Ford's grievance was discussed , with each side taking essentially the same position as taken in the November meeting with respect to the Brown grievance. It is the grievance of Brown's and Ford's related grievance which form the basis of the allegations of unfair labor practices in Case No. 8-CA-2682 . Because of the similarity of events and positions taken by the parties concerning grievances filed by the Local, Nitrogen group (Case No. 8-CA-2683 ) events concerning that group will be stated prior to a consideration of the issues raised. 2. The grievances in Case No. 8-CA-2683 (Nitrogen Plant) On October 15, 1961, Fred Britsch , group chairman, Local Nitrogen group, filed a grievance complaining that Carl Place, a foreman, had performed certain main- tenance work that should have been assigned to the low men on the overtime list. On October 23, 1961 , Foreman Place responded to the grievance by stating that, because it was not filed by an employee or an employee and his steward , the grievance was not valid. On October 26, 1961 , Britsch took his grievance to the second step and on November 2, 1961 , received an oral answer from Respondent indicating that Re- spondent did not consider his grievance to be valid . On November 9, 1961 , Britsch notified Respondent of the "Union 's" intention of taking his grievance to the third step, and his grievance was discussed at the union -company committee meeting on December 22, 1961, wherein the parties took similar positions to those they took on the Brown and Ford grievances. On November 14, 1961 , C. H. Conaway, a union steward, Nitrogen group, filed a grievance relating to a failure to call in the appropriate man for overtime work. On November 22, 1961, M. J. Groman, operating foreman, Nitrogen Plant, respond- ed to Conaway's grievance and informed Conaway, "An error was made and the low man on the overtime list was not called . The person that was low on the over- time list at that time will be contacted and the matter will be settled with him." The record does not show that any objection was raised by Conaway or any other "union" representative to Groman's statement regarding arrangements for settlement. Subsequently, the low man on the overtime list was paid for the lost time . Although the Conaway grievance was not formally appealed to the second and third steps, the matter was discussed at the union -management meeting on December 22, 1961. In answer to the "Union's" statement at the meeting that the first -step answer to Conaway did not indicate "the manner of settlement with the low man ," the Com- pany responded that at the time of the answer "settlement had not yet been made." C. Resolution of the issues raised 1. As to Local's status as bargaining representative Respondent contends that since the International was certified as the bargain- ing representative for the units in the two plants involved herein, it need not deal with the Local. However, since Respondent admits that it has recognized and bar- gained with the Local as the agent of the International and does not now dispute its authority to act for the International , it does not appear necessary to resolve this issue in order to resolve the principal issues herein. 2. As to the filing of grievances Although the contracts involved herein state that the grievance procedure shall be initiated by the filing of a "complaint or grievance " in writing by "the employee or the employee and his steward ," General Counsel contends that Respondent vio- lated Section 8(a) (5) and ( 1) of the Act by refusing to process grievances filed by officers of the Local. It is clear from the conduct of the parties that it was understood that officers of the Local were attempting to invoke the contract procedure by filing grievances thereunder. Thus, in effect, General Counsel's position is that the contract should be construed to include authorization of the bargaining representative to initiate the grievance procedure . The argument in support thereof is essentially that in the absence of an express waiver on the part of the bargaining representative, it cannot be deemed to have waived its statutory right to represent employees in the presentation and adjustment of their grievances , citing Beacon Piece Dyeing and Finishing Co., 121 NLRB 953. In the Beacon case the issues were whether the Union had waived on behalf of the employees it represented the statutory right to bargain with respect to workloads and wage increases and whether because of the existence of a contractual grievance procedure the Board had jurisdiction to consider whether SOHIO CHEMICAL COMPANY, ACRYLONITRILE PLANT 817 the Respondent therein violated the Act by refusing to bargain regarding the action taken with respect to these matters. The Board stated, (page 961), that "the collective-bargaining requirement of the Act is not satisfied by a substitution of the grievance procedure of a contract, unless the grievance provisions of the contract contain a waiver of the statutory right `expressed in clear and unmistakable terms."' The grievance provisions of the contracts involved herein do not expressly state that the "Union" waives the right to initiate grievances on behalf of aggrieved em- ployees. However, it does not appear that the principle enunciated in the Beacon case, supra, is applicable to the issues herein. The instant proceeding does not involve a waiver of the right of aggrieved em- ployees to present grievances, but a waiver of the right of the "Union" to initiate the contractual grievance procedure on behalf of such employees. The language which spells out how the grievance procedure is to be invoked omits any reference to the "Union" and specifically states the alternatives of a filing by "the [aggrieved] employee and his steward." Filing by the "Union" would appear to be excluded by the failure to include it. I am of the opinion that it is appropriate to infer that the parties understood that the language in the contract was intended to restrict the "Union" from initiating the grievance procedure. I conclude this, not only because of the familiar maxim inclusto unius est exclusio alterius, but also in view of certain facts with respect to the negotiation of the aforementioned 1957 contract. The "Union" proposed language authorizing it, as well as employees, to initiate griev- ances. The 1957 contract which was executed contained language substantially the same as that in the present contracts omitting any reference to the "Union" being permitted to file grievances. Although there is no showing of what occurred in the course of the negotiations which led to the revision of the "Union's" proposal, I believe it reasonable to infer that the deletion of the "Union" from those authorized to file grievances under the contract procedure was deliberate. Although there is clearly an implied waiver, General Counsel, relying on the Beacon case, argues that there must be an express waiver before the Board will find that a statutory right has been waived. However, the Act does not give a bargaining representative the right to invoke contractual grievance procedures. Here the Local was attempting to initiate the contractual procedure despite the absence in the contract of a provision that it had the right to do so. It is well established that parties to a collective-bargaining contract may agree upon a procedure for handling grievances. Such a grievance procdure may restrict the participation of the bargaining repre- sentative in some of its phases. For example, in Shell Oil Company, etc., 93 NLRB 161, a grievance procedure had been incorporated in the collective-bargaining agree- ment involved which provided for the handling of grievances through so-called workmen's committees consisting of employees. The Board found, inter alta, that the Respondent therein did not violate Section 8(a)(5) of the Act by refusing to process a grievance in the presence of a representative of the Union. The Board stated: ... The Local now seeks to nullify this agreement by asking us to hold that it may at will ignore its contractual arrangement and seek to negotiate grievances through committees or classes other than that upon which it had agreed. We do not believe that it would effectuate the policies of the Act to prevent disruptions to interstate commerce by stabilizing labor relations, to permit such a disregard of a contractual obligation voluntarily assumed. Such a holding does not derogate from the principles of collective bargaining. For, in the first instance, the union is not required to bargain at all with respect to waiving or restricting its right to be represented by any specific class, regardless of any employer's insistence. But here the union, either voluntarily or because it yielded to the normal persuasion attendanct upon good-faith collective bargaining, as distinguished from the case where yielding is made a condition to the execution of an agreement,7 willingly bargained with respect to the subject matter in 4 Cf American National Insurance Company, 89 NLRB 185. question, and agreed to the restriction pursuant to the ordinary give and take of good-faith bargaining. For us to hold that an employer under these cir- cumstances violated the Act by insisting that the union honor its contractual obligation would make a mockery of the collective bargaining in which the parties in good faith engaged. The Local is a party to the contracts involved herein by which it impliedly agreed to restrict the filing of grievances under the contract procedure to aggrieved em- ployees or such employees and their stewards. To hold that it is also entitled to file grievances under the contract procedure would require the Board to ignore the contractual arrangement. $1$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel apparently argues that if the "Union" is found to have waived the right to file grievances under the contract procedure, it would be precluded from requiring the Respondent to bargain with respect to grievable matters which do not involve an ascertainable aggrieved employee who could initiate the grievance and, thus, the waiver of a statutory right is involved. I find no merit in this argument since the contractual procedure can only be considered to embrace those matters which involve ascertainable aggrieved employees 5 and, therefore, it would follow that all other grievable matters remain in the general bargaining area under the Act It does not appear that the "Union" has waived its right to bargain outside of the contractual procedure with respect to the categories of matters for which the con- tractual procedure was not designed. There are four grievances involved herein, the Brown and Ford grievances in Case No. 8-CA-2682 and the Britsch and Conaway grievances in Case No. 8-CA- 2683. Of these, the first three were rejected because they were not filed by an employee or an employee and his steward. It does not appear that the Conaway grievance was rejected, although it was filed only by a steward. Since the three which were rejected did not meet the contractual requirement as to the method for filing, it would appear that Respondent was entitled to refuse to process them under the contract procedure whether or not they were within the category of grievances relating to ascertainable aggrieved employees .6 3. The adjustments of the grievances The Brown and Conaway grievances were adjusted by the payment to the em- ployees who should have been selected for overtime work the amount which they would have earned had they been selected. Neither the General Counsel nor the "Union" appears to have any objection to the adjustment made, but General Counsel contends that Section 8(a)(5) and (1) of the Act was violated by not affording a representative of the "Union" an opportunity to be present when the Respondent arranged the adjustments with the three aggrieved employees.? Having rejected the Brown grievance under the contract procedure, it would ap- pear that the Respondent, when settling the gravamen of the grievance with the two aggrieved employees, should have given a representative of the "Union" an oppor- tunity to be present as required under Sections 8(d) and 9(a) of the Act. Respond- ent apparently relies on the provisions in "Step 1" of the contract procedure as authority to have made the adjustment as it did. Assuming that under the contract procedure settlements can be so made,8 Respondent cannot insist that the contract procedure may not be initiated by the filing of a grievance by an officer of the Local and then rely on the contract procedure to make an adjustment with the aggrieved employee as if the procedure had been initiated. Since the contract procedure had not been invoked, it would appear that any action with respect to a settlement with an aggrieved employee should be considered to be subject to the provisions of the Act and not to the provisions in the contract procedure. As for the settlement of Conaway grievance, apparently Respondent waived the defect that the aggrieved employee had not joined with the steward (Conaway) in filing the grievance. It does not appear whether Conaway was or was not present when the Respondent settled the grievance with the aggrieved employee as may be required in "Step 1." In any event, there does not appear to have been any objec- tion raised at the time to the handling of the Conaway grievance. While the adjustment of the Brown grievance is technically violative of Section 8(a)(5) and (1) of the Act, I am of the opinion that it is not necessary to issue a 5 The language in the contract with respect to the grievance procedure clearly indicates that only matters affecting ascertainable individual employees are to be processed under the contractual procedure. The procedure requires that it be initiated by an aggrieved employee or such employee and his steward ; the second step must also be initiated by the employee ; and the third step is initiated by the "Grievance Committee on behalf of the employee." Olt would appear that the Brown and Britsch grievances which related to the failure to assign certain work to the employees entitled to perform it do come within this category It might be argued that the Ford grievance which protested the rejection of the Brown grievance is outside the category, but it is of no moment in what category it belongs 7 Since the record does not disclose any adjustment was made with respect to the other two grievances, they are not involved in this issue. 8 It is not necessary to pass upon the question of whether under the contract procedure settlements can be made without affording an opportunity to a representative of the "Union" to be present WELLINGTON MILL DIVISION WEST POINT MFG. CO. 819 remedial order herein in order to effectuate the policies of the Act. Respondent's action in settling the matter with the two aggrieved employees without giving an opportunity to a representative of the "Union" to be present was apparently predi- cated upon the mistaken assumption Respondent was entitled to rely upon the provi- sions in the first step of the contractual grievance procedure. This appears to have been an isolated incident and to have arisen out of a confusion as to what the rights, duties, and obligations of the parties are under the contract . Furthermore, the in- cident appears to have been trivial and there seems to be little likelihood that it will be repeated. Under the circumstances, I have concluded that no substantial purpose would be served in requiring the Respondent to take action to remedy its technical violation of the Act. Upon the stipulated facts and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Local and International are labor organizations within the meaning of Sec- tion 2(5) of the Act. 3. Respondent has not violated Section 8 (a) (5) and (1) of the Act by refusing to process grievances filed by officers of the Local under the grievance procedure set forth in its contracts with the Local and International. 4. Respondent violated Section 8(a)(5) and (1) of the Act by adjusting a griev- ance with two aggrieved employees without giving a representative of the "Union" an opportunity to be present, when the contractual grievance procedure had not been invoked and the Respondent had been informed by the "Union" of its interest in prosecuting the grievance. Although I have found a technical violation of the Act, for the reasons set forth above I am not going to recommend that a remedial order be issued, but, instead, that the complaint be dismissed in its entirety. RECOMMENDED ORDER Based upon the stipulated facts and conclusions of law and upon my conclusion that it is not necessary, in order to effectuate the policies of the Act, that a remedial order be issued in this proceeding, it is recommended that the complaint herein be dismissed in its entirety. Wellington Mill Division West Point Manufacturing Company and Textile Workers Union of America, AFL-CIO Wellington Mill Division West Point Manufacturing Company and Textile Workers Union of America, AFL-CIO. Cases Nos. 11-CA-1821 and 11-CA1823. March 27, 1963 DECISION AND ORDER On April 27, 1962, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint. Thereafter, the Charging Party and the Respondent filed ex- ceptions to the Intermediate Report together with supporting briefs. 141 NLRB No. 73. 708-006-64-vol. 141-53