National Rejectors Industries

NATIONAL REJECTORS INDUSTRIES National Rejectors Industries and United Steelwork- ers of America, AFL-CIO, CLC, and its Local 6178. Cases 26-CA-6486 and 26-CA-6599 January 16, 1978 DECISION AND ORDER REMANDING PROCEEDING TO THE ADMINISTRATIVE LAW JUDGE FOR HEARING ON MERITS BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO At a hearing held on September 13, 1977, in Hot Springs, Arkansas, Administrative Law Judge Elbert D. Gadsden granted General Counsel's motion to amend his complaint to delete that section alleging that National Rejectors Industries (hereinafter called Respondent) violated Section 8(a)(3) of the Act. After this ruling, United Steelworkers of America, AFL-CIO, CLC, and its Local 6178 (hereinafter called the Charging Party or the Union), filed with the Board an appeal brief in opposition to the dismissal of the complaint and deferral to arbitra- tion; Respondent filed an opposition to the Charging Party's appeal brief; the Charging Party filed a response to Respondent's opposition; and Respon- dent filed a reply to the Charging Party's response. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record,' the prelimi- nary rulings of the Administrative Law Judge to grant General Counsel's motion to dismiss the 8(aX3) allegation and defer the issue to arbitration, General Counsel's written request to dismiss the complaint, including the 8(a)(5) allegation, in its entirety, and the appeal briefs and oppositions, and has decided to grant the Charging Party's appeal, to deny the General Counsel's motion to dismiss, and to remand the entire proceeding to the Administrative Law Judge for a hearing and decision on the merits. At a grievance meeting in December 1976, an incident occurred which resulted in Respondent's discharging Union President Russell and suspending two other officers. The Union filed grievances with respect to these actions. As the three officers were designated members of the Union's grievance com- mittee for purposes of step 2 of the grivance procedure (which provides that appeals be submitted to a meeting between management representatives I No evidence had been submitted when opposition to dismissal and deferral arose. To assist in making a determination that deferral to arbitration is inappropriate, the Board relies in part on the decision of the Court of Appeals for the Eighth Circuit of which the Board takes judicial 234 NLRB No. 34 and the grievance committee), when step 2 negotia- tions were reached, Respondent requested that, instead, further proceedings be conducted at a higher level-not involving the grievance committee-in accordance with its interpretation of the contract. The Union refused, insisting that the officers be involved in the grievance proceeding. Respondent refused to meet with Russell, agreeing only to proceed at the next higher level. The Union then filed grievances over Respondent's refusal to abide by the grievance procedures, and negotiations reached an impasse. Subsequently, the Union brought 8(a)(3) charges against Respondent concerning the dismissal and suspensions of the officers. In March 1977, Respondent unilaterally promulgated new work rules for the employees, including a requirement of logging in and out when handling a grievance. After the Union was informed of these rules and refused to negotiate without Russell's presence, Respondent placed the rules into effect. The Union informed Respondent that it would not comply with the new rules. Within 4 days after the new rules went into effect, 138 employees had been suspended for failure to "log in or out" according to the new rules. The Union filed grievances with respect to each suspen- sion. Production seriously declined, and Respondent suspended enforcement of the controversial new rules and notified the Union that it would waive immediate steps of the grievance procedure in order to begin arbitration and would continue suspension of the work rules pending resolution of the griev- ances. The Union refused-and Respondent soht relief in the district court. The district court found that, by violating the work rules, employees engaged in concerted activity calcu- lated to slow production; that this activity was precipitated by Respondent-Union disputes; that these disputes were arbitrable, and, therefore, that these actions violated the contract. Therefore, it enjoined further union efforts "to impede production at the plant" and required the parties to submit their disputes to arbitration.2 On appeal, the Court of Appeals for the Eighth Circuit, in affirming the district court, found that the Board does not have "exclusive" jurisdiction over the subject matter be- cause "the merits of the company's actions" were not involved but "only whether the union's reactions created a dispute which the parties had obligated themselves to resolve through arbitration under the collective-bargaining agreement." (562 F.2d at 1074, fn. 8.) notice. See National Rejectors Industries v. United Steelworkers of AAmerica, AFL-CIO, CLC, and its Local 6178. 562 F.2d 1069 (1977). 2 95 LRRM 2145, 81 LC §13, 190 (D.C. Ark., 1977). 251 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The consolidated complaint had issued on June 15, 1977. At the hearing, before evidence was presented, the General Counsel moved to "amend out" the 8(a)(3) section of the complaint "in view of the parties' intention to arbitrate." The Administrative Law Judge granted this motion, but took under advisement whether to grant Respondent's motion to dismiss the entire complaint. The Administrative Law Judge granted the Charging Party permission to appeal his decision to grant the General Counsel's motion to dismiss the 8(a)(3) charge. Subsequently, General Counsel filed a motion to dismiss the complaint in its entirety pursuant to his contention that the remaining portion of the complaint (alleging a violation of Sec. 8(a)(5) of the Act) should be deleted in addition to the already deleted 8(a)(3) allegation on the same ground that General Counsel asserted at the hearing-the parties have announced their intention to arbitrate the issues. The Charging Party contends that the Administra- tive Law Judge should have denied the General Counsel's motion to dismiss the 8(a)(3) portions of the complaint. We agree with this contention and, accordingly, shall remand the proceeding to the Administrative Law Judge for a hearing on the merits. In General American Transportation Corporation, 228 NLRB 808 (1977), a Board majority recently found that issues raised by the 8(a)(3) and (1) portions of a complaint are inappropriate for deferral to arbitra- tion. The majority here, consisting of Chairman Fanning and Member Jenkins, has long argued, in opposition to the policy established by Collyer Insulated Wire, 192 NLRB 837 (1971), that the Board has a statutory duty to hear and dispose of unfair labor practices and cannot abdicate or avoid its duty by seeking to cede its jurisdiction to private tribunals. As in General American Transportation, were we to order deferral herein, there would be nothing volun- tary about the arbitration in which the Charging Party would be participating. Although the Charging Party initially sought arbitration, it has steadfastly opposed arbitration under the modified terms which Respondent has demanded. Indeed, it appears that s We shall not dismiss the Charging Party's appeal on procedural grounds as Respondent urges. We note that the Administrative Law Judge granted permission to the Charging Party to appeal, and recessed the hearing with a request for briefs on deferral of the remaining portions of the complaint. The appeal itself is, in effect, a request for special permission to bring the issues to the Board at this time, prior to final decision by the the 8(a)(3) allegation itself stems from Respondent's alleged reaction to the Charging Party's conduct in a grievance procedure. At the hearing, counsel for the Charging Party explained that its willingness to arbitrate was predicated entirely upon the arbitration order of the district court, affirmed by the court of appeals. In our opinion, such acquiescence cannot be considered voluntary. In our view, the allegation that Respondent violat- ed Section 8(a)(5) by unilaterally instituting rules resulting in suspension is inextricably related to the 8(a)(3) violation alleged in the complaint. According- ly, the 8(a)(5) allegation is inappropriate for deferral and we hereby deny General Counsel's motion to dismiss the complaint in its entirety. 3 The Administrative Law Judge, in granting the motion to dismiss the 8(a)(3) portion of the com- plaint and taking under advisement proposed dismis- sal of the 8(a)(5) portion, did not have before him a record concerning the unfair labor practices alleged. Accordingly, we shall remand this proceeding to the Administrative Law Judge for a hearing on the entire complaint and decision on the merits. ORDER It is hereby ordered that this proceeding be, and it hereby is, remanded to Administrative Law Judge Elbert D. Gadsden so that he may proceed to hearing as indicated herein. MEMBER PENELLO, dissenting: I agree with the position taken by the General Counsel that the complaint should be dismissed and the case deferred to arbitration. See former Member Walther's and my dissent in General American Transportation Corporation, 228 NLRB 808 (1977). This case involves, in the words of the court of appeals, "a dispute which the parties had obligated themselves to resolve through arbitration under the collective-bargaining agreement." National Rejectors Industries v. United Steelworkers of America, supra at 1074, fn. 8. Administrative Law Judge. In addition, we would not ignore the arguments of the Charging Party in view of the General Counsel's motion to dismiss the complaint in its entirety; consideration of such arguments is particularly appropriate on the issue of deferral to arbitration of alleged unfair labor practices. 252