Houston Mailers Union No. 36

804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Houston Mailers Union No. 36 affiliated with Inter- national Mailers Union and Houston Chronicle Pub- lishing Company. Case 23-CB-1225 October 18, 1972, DECISION AND ORDER On February 8, 1972, Trial Examiner Marion C. Ladwig issued the attached Decision in this proceed- ing. Thereafter, counsel for General Counsel filed ex- ceptions and a supporting brief, and counsel for Respondent filed a brief in support of the Trial Examiner's Decision. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. The complaint alleges and the General Counsel contends that Respondent violated Section 8(b)(1)(B) of the National Labor Relations Act, as amended, in that Respondent restrained and coerced the Charging Party in the selection of its representative for the pur- pose of collective bargaining or the adjustment of grievances by fining the Charging Party's foreman, Joe V. Frenza, who was also a member of Respon- dent, a sum of $25 for performing an act within the scope of his supervisory authority. Respondent denies it has violated the Act in any manner but contends further that the Board should defer decision in this case in light of the fact that the question presented in this case is specifically covered in the parties' collec- tive-bargaining agreement, which also contains a de- tailed grievance and arbitration procedure which should be utilized to determine the dispute involved here. The Trial Examiner on the strength of the griev- ance and arbitration provisions in the parties' con- tract, and on the authority of the Board majority decision in Collyer Insulated Wire, A Gulf and Western Systems Co.,' deferred this case to the parties' contrac- tual grievance and arbitration provisions while retain- ing limited jurisdiction in the manner and for the purposes set out in our Collyer decision. We are in agreement with the Trial Examiner's disposition of this case, but wish to set forth our rea- soning in somewhat different terms. Section 8(b)(1)(B), here involved, protects an em- ployer against union-caused restraint or coercion "in the selection of his representative for the purpose of collective bargaining or the adjustment of griev- ances." The concern of the Congress, in enacting this provision, was that one party to the bargaining proc- cess should not be coerced in his selection of those ' 192 NLRB No. 150. who will carry out his function in the bargaining and grievance-handling process. But we know of no stat- utory prohibition against an employer's voluntary agreeing to limit or circumscribe either the selection of representatives or the manner of the exercise of a representative's functions. Or, to rephrase the issue, we see nothing in the statutory scheme that prohibits an employer and a labor organization from voluntar- ily resolving, in their collective-bargaining agreement, how this broadly stated legislative policy should func- tion in their particular circumstances. Thus, in the present case, sections 17 through 19 of the parties' contract state that all work is under the foreman's direction. Other substantive provisions may be applicable as well. Thereafter, section 20 con- tains the following specific provision concerning pos- sible disciplining of the Employer's foremen by the Union: The Union or its representatives shall not dis- cipline the foreman for carrying out the instruc- tions of the Publishers or his representatives as au- thorized by this contract and scale. Employees may protest against foreman's actions, but if foreman, after careful consideration, decides his actions [sic] in accordance with the contract, he need not change conditions unless directed to do so by the Publishers or by a decision of the Joint Standing Committee. If any employee or the Un- ion has a complaint against the foreman ... and differences cannot be adjusted by conciliation, the matter may be referred to the local Joint Standing Committee as provided herein. Nothing contained in this Section 20 or any other section in this contract shall be construed as requiring that the foreman shall be a member of the Union. [Emphasis supplied.] It is in the context of such an agreement between the parties that the instant dispute arises. We note that the parties' arbitration clause is broadly stated, covering not only all disputes arising out of the operation or interpretation of the contract, but any and all disputes between the parties. In the Collyer case, the Board pointed to the con- gressionally expressed and court approved policy fa- voring voluntary settlement of labor disputes through the arbitral process. As the Board stated in Collyer, supra, "When the parties have contractually commit- ted themselves to mutually agreeable procedures for resolving their disputes during the period of the con- tract, we are of the view that those procedures should be afforded full opportunity to function." We see no reason why such a policy should not prevail in the present case. Where, as here, the statutory provision in question is generally phrased and, like Section 8(a)(5), for example, deals with the on-going relation- ship between the parties to collective bargaining, we 199 NLRB No. 69 HOUSTON MAILERS UNION NO. 36 believe it well within the intent of the statute to en- courage the parties to flesh out the bare-bones of their statutory obligations with specific ground rules ap- propriate to their particular circumstances. And where, as here, they have done this, the precise limits of their rights and obligations have become largely contractual, and should, at least in the first instance, be presented to an arbitrator for interpretation and decision. As in Collyer, supra, we shall direct the par- ties in the present case to the forum of arbitration, retaining jurisdiction in the manner noted by the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner. MEMBERS FANNING AND JENKINS , dissenting: The majority by its deferral to arbitration herein refuses to decide a case involving a question readily solvable through the processes of the Board in order to give the parties an opportunity to utilize a grievance and arbitration procedure which one of the parties, the Charging Party here, has no desire to use and which the other party, Respondent here, refused to use when it first had the opportunity to do so. We respectfully dissent from the majority's adoption of the Trial Examiner's Decision herein and its unwar- ranted deferral and would decide this case on its mer- its on the basis of the stipulated factual record presently before the Board. The majority, in effect, refers to the parties' con- tractual provisions the simple issue of whether or not Respondent violated Section 8(b)(1)(B) of the Act when it fined Foreman Frenza for an act admittedly within the scope of his authority to perform. This general issue in various forms has been passed on by the Board in numerous recent cases involving 8(b)(1)(B) allegations? The majority could very easily decide this case which is presently before us on a full record and which has not been processed yet through the parties' griev- ance and arbitration provisions. This the majority re- fuses to do. Rather, it defers decision in this case even where the statutory violation could be decided with- out a ruling on the contract violation alleged and where the expertise of an arbitrator is not needed.' The majority has thereby further expanded the Col- lyer rationale. In Collyer, the majority took great pains to state as a key reason for deferral the fact that "the contract and its meaning in present circumstances lie at the center of this dispute. In contrast, the Act and its policies become involved only if it is determined that 805 the agreement between the parties, examined in the light of its negotiating history and the practices of the parties thereunder, did , not sanction Respondent's right to make the disputed changes, subject to review if sought by the Union, under the contractually pre- scribed procedure."4 Today, in a case where such a consideration is nowhere involved, the majority still refuses to decide the statutory issue involved. Indeed, by emphasizing their reliance on the fact that section 20, the contract clause dealing with disci- plining of foremen by the Union, is so broad as to include the prohibitions of Section 8(b)(1)(B), the ma- jority has now confirmed what we have previously predicted would be the result of their Collyer princi- ple; namely, by incorporating the provisions of the Act into the contract and then appending an arbitra- tion clause, the parties can avoid the sanctions of a Board determination of the alleged violation of the Act. Accordingly, for the relevant reasons set out in our dissents in Collyer, and for those reasons set out herein, we dissent from the majority's decision and from the further abdication of the Board's statutory responsibility to which this decision leads. We note also that the Trial Examiner stated that deferral here could be accomplished without preju- dicing any of the Section 7 rights of the employees since the unfair labor practice charge here is not based on an alleged violation of employee rights guaranteed by the Act and hence the Board is not obliged to assert its adjudicatory powers in order to vindicate employ- ee rights under the Act. The Trial Examiner's com- ment misses the point, however. The situation involved here concerns an allegation of an 8(b)(1)(B) violation. This statutory section protects and Employ- er from restraint and coercion by a union. Material here then is whether or not the Charging Party (the employer herein) has had its rights under the Act prej- udiced by this deferral. We submit that such is the case. 2 See, e g, Sheet Metal Workers' International Association, Local No 71, AFL-CIO (H J Otten Company, Inc), 193 NLRB No 5; San Francisco Typographical Union No 21, 193 NLRB No 41, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, Local No 7 (United Masonry, Inc), 193 NLRB No 72 3 The Trial Examiner conceded this in his Decision 4 192 NLRB No. 150, Board decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARION C. LADWIG, Trial Examiner: This case was tried at Houston, Texas, on January 6, 1972. The charge was filed by the Company on October 18, 1971 1 (amended No- All dates are in 1971 unless otherwise stated. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vember 12), and the complaint was issued on November 16. The case arose when a company foreman designated a jun- ior employee as man in charge of a double-time shift, and the Union fined the union-member foreman. The primary issues are: (a) whether the Board will under its Collyer deci- sion, defer to arbitration in this case, and if not, (b) whether the levy of the union fine restrained or coerced the Compa- ny in the selection of its representative for the adjustment of grievances, in violation of Section 8(a)(1)(B) of the Act. Upon the entire record and after due consideration of the briefs filed by the General Counsel, the Union, and the Company, I make the following: FINDINGS OF FACT I JURISDICTION The Company, a Texas corporation, is engaged in the publication of a daily newspaper in Houston, Texas, where it subscribes to various interstate news services, advertises various nationally sold products, and annually derives gross revenues in excess of $200,000. As admitted by the Union, I find that the Company is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II ALLEGED UNFAIR LABOR PRACTICES A. Levy of Fine Against Foremen The facts are stipulated. On September 3, Mailroom Foreman Joe Frenza designated employee Carl Imel as man in charge to work a double-time shift on September 6. The Union complained , to no avail, that senior employees want- ed the designation . Thereafter the Union charged Foreman Frenza, who was a union member, with violating the union bylaws, article 6, section 2, which provides that "Foremen shall not designate any particular day, nor how many days, a member shall work in any one week ." Under instructions from the Company, Frenza did not appear to defend him- self before the union executive board . On September 16, the Union levied a $25 fine against Frenza for designating Imel as man in charge on the double-time shift . The Union noti- fied him of the fine on October 7, and Frenza paid the fine under protest on October 8. Foreman Frenza acted within the scope of his supervi- sory authority when making the designation. Frenza has authority to, and does, adjust employee grievances on be- half of the Company. On September 20, after the fine was levied , the Compa- ny complained in writing to the Union, stating that Frenza was acting in his capacity as supervisor, and protesting that "such charges and fine are in direct violation of the contract between the parties and also violate the National Labor Relations Act." (Emphasis supplied.) In response, the Un- ion wrote the Company about October 7, expressing resent- ment for the Company's intrusion into internal union affairs, and stating that if the Company feels the Union committed a violation of the current union agreement, "we suggest you avail yourself of the Grievance and Arbitration provisions as found in Section 2." The Company has not filed a grievance. It filed the charges herein instead. B. Contractual Provisions Section 2 of the union agreement (effective December 15, 1969, through January 15, 1973) provides for a grievance procedure with final and binding arbitration. Section 2(b) contains a broad arbitration clause, providing that "all dis- putes ansing out of the operation of this agreement ... and any and all disputes between the parties" shall be referred to the grievance and arbitration procedure. (Emphasis sup- plied.) There is no stated time limit for filing a grievance. Section 7 of the agreement provides: "It is agreed that fruitless controversies must be avoided and every effort made to maintain harmonious relations. To accomplish this, both parties will in every instance give prompt attention to disputes and will in good faith endeavor to settle all differ- ences by conciliation or arbitration ... " (Emphasis supplied.) In addition, the agreement contains a specific provision concerning the Union disciplining a foreman. Section 20 provides: The Union or its representatives shall not discipline the foreman for carrying out the instructions of the Pub- lishers or his representatives as authorized by this con- tract and scale. Employees may protest against foreman's actions, but if foreman, after careful consid- eration, decides his actions in accordance with the con- tract, he need not change conditions unless directed to do so by the Publishers or by a decision' of the Joint Standing Committee. If any employee or the Union has a complaint against the foreman ... and differences cannot be adjusted by conciliation, the matter may be referred to the local Joint Standing Committee as pro- vided herein. Nothing contained in this Section 20 or any other section in this contract shall be construed as requiring that the foreman shall be a member of the Union. (Emphasis supplied.) Under Sections 17-19, all work is under the foreman's direc- tion. Section 3(d) specifically states that the foreman's com- pensation and working conditions are not covered by the agreement. C. Proposed Deferral to Arbitration 1. Contentions of the parties In its able brief, in which it analyzes the Collyer deci- sion, Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB No. 150 (1971), the Union contends that here, it and the Company "have in fact agreed to submit disputes such as the present one to the grievance and arbi- tration procedures of their collective-bargaining agree- ment," and that "the complaint should be dismissed with either party having access to the procedures of the Board in the event that the results reached through their contract procedures is repugnant to the Act in accordance with the principles of Spielberg Manufacturing Company, 112 NLRB 1080." The Union emphasizes the contractual provisions HOUSTON MAILERS UNION NO. 36 which require all disputes and differences to be processed through the grievance and arbitration procedure, and also the specific contractual prohibition against the Union "dis- ciplining the foreman for actions authorized by the con- tract." Quoting language from the Collyer decision, the Union argues that the Company should not be permitted to "sidestep" the agreement of the parties by going to a "forum not contemplated by their own agreement." The General Counsel and the Company oppose defer- ral to arbitration. The General Counsel argues that the Col- lyer decision is distinguishable because it "did not involve an 8(b)(1)(B) situation." The Company, ignoring the con- trary position it took on September 20 (that the fine was in direct violation of the union agreement), contends in its brief that this case does not involve a contract dispute, and ar- gues : "This distinguishes Collyer since Collyer involved a unilateral wage change with contract interpretation at the very core of the dispute." 2. Anaylsis and concluding findings The Union disciplined a foreman member (by fining him $25) for taking, on behalf of the Company, certain action which the Union contends was not authorized by the collective-bargaining agreement . At the time, the Company notified the Union that the charges against the foreman and the fine "are in direct violation" of the agreement. The agreement (sec. 20) provides that "The Union ... shall not discipline the foreman for carrying out the instructions of the Publishers . . . as authorized by this contract . . . " The agreement (sec. 2) also provides that all disputes arising from the operation of the agreement or re- garding contract interpretation, and any and all disputes between the parties, shall be referred to the grievance proce- dure, culminating in final and binding arbitration. The agreement (sec. 7) further provides that "both parties" will in good faith endeavor to settle all differences by concilia- tion or arbitration. Therefore here, as in Collyer, "the breadth of the arbi- tration provision makes clear that the parties intended to make the grievance and arbitration machinery the exclusive forum for resolving contract disputes." In addition, the Company and the Union have agreed that all disputes be- tween the parties, and all differences arising between them during the term of the agreement, shall be settled in that way. Furthermore, the Company and the Union have in- cluded in the agreement a specific provision dealing with union discipline of a foreman. There is clearly a contractual dispute over whether or not the Union violated the union-disciplining-of-foreman provision in the collective-bargaining agreement by disci- plining the foreman with the $25 fine. It is also clear that the Company and the Union committed themselves to refer to arbitration not only such contract disputes as this, but all disputes and differences between them. The Union has sug- gested arbitration, but the Company prefers that the Board resolve this particular dispute. The Collyer case, as does this case, involved both stat- utory and contract violations. But there are significant dis- tinguishing factors. In Collyer, the contract and its meaning were "at the center" of the dispute, and "the Act and its 807 policies" became involved only if it were determined that the agreement did not sanction the employer's unilateral changes (which were alleged to be 8(a)(5) violations). In addition, it was found that "disputes such as these can better be resolved by arbitrators with special skill and expe- rience in deciding matters arising under established bar- gaining relationships than by the application by this Board of a particular provision of our statute." Here, the alleged statutory violation (restraining the Company in the selec- tion of its representative) could be resolved without a ruling on this alleged contract violation, and the expertise of an arbitrator is not needed. But there remain other policy considerations in Collyer, as well as the obvious preference for parties to settle their own problems, and the disruptive effect on their contractu- ally encouraged "harmonious relations" if the Board per- mits one of the parties to sidestep the unequivocal commitment to refer all disputes to the grievance procedure. Here, in their agreement, the Company and the Union clearly and unmistakably waived their right to resort to the Board, the courts, to strike or lockout action, or any other means outside the grievance procedure for settling "any and all disputes" between them. The Board held in Collyer, "When the parties have contractually committed them- selves to mutually agreeable procedures for resolving their disputes during the period of the contract, we are of the view that those procedures should be afforded full opportunity to function." Clearly this can be done in the present case with- out diminishing or prejudicing any of the Section 7 rights of the employees, inasmuch as the unfair labor practice charge is not "based on an alleged violation of employee rights guaranteed by the Act," and where the Board is not obligat- ed to assert its adjudicatory power in order to "vindicate employee rights under the Act." Gateway Transportation Co., 193 NLRB No. 1, TXD, sec. III, 8. Neither the General Counsel nor the Company has even suggested that deferral to arbitration in this case could establish a precedent which could strip any employee of a statutory right to appeal to the Board if he feels aggrieved by the operation of the agreement or the grievance procedure. Nor have they de- nied that the agreement (in the words of Collyer) makes "available a quick and fair means for the resolution of this dispute including, if appropriate, a fully effective remedy for any breach of contract which occurred." I therefore find that under the particular circumstances of this case, harmonious relations between the contractual parties would best be served-without diminishing or preju- dicing any employee's Section 7 rights-by honoring the commitment by the Company and the Union to settle all disputes through the grievance and arbitration procedure. I therefore find that the complaint should be dismissed, with- out prejudice to any party on the merits of the dispute. CONCLUSIONS OF LAW 1. The Company and the Union have committed them- selves to settle through the grievance and arbitration proce- dure not only this but all disputes and differences arising between them during the term of their collective-bargaining agreement. 2. In the circumstances of this case and in the absence 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of any prejudice to Section 7 rights of any of the employees, it would effectuate the policies of the Act to honor the commitment and to defer the dispute between the Company and the Union, concerning the union discipline of a fore- man, to the grievance and arbitration procedure. REMEDY In order to eliminate the risk of prejudice to any party, I find it necessary that the Board retain jurisdiction over this dispute solely for the 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, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a results which is repugnant to the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety; provided, however, that: Jurisdiction of this proceeding is retained for the limit- ed purpose indicated in the section of the Trial Examiner's Decision entitled "Remedy."