The Seng Co.

200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Seng Company and Furniture and Bedding Work- ers Local 18-B, United Furniture Workers of Ameri- ca, AFL-CIO. Case 9-CA-6989 August 2, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On January 18, 1973, Administrative Law Judge Joseph I. Nachman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, but, for the reasons set forth below, to remand the case to him for a supplemental decision. The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Rela- tions Act, as amended, by discriminatorily applying and enforcing a no-solicitation and no-distribution rule t by permitting solicitation for other than union activities; discriminating against three employees by unjustly accusing them of violating the no-solicitation rule and reprimanding them therefor; and discrimi- nating against one employee by discharging him for the same reason. The Administrative Law Judge found it unnecessary to consider the complaint on the merits as he viewed the issues herein as ones more appropriately left to the grievance and arbitration procedures contained in the parties' contract rather than to the Board's processes, under the policies enun- ciated in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837, and National Radio Company, Inc., 198 NLRB No. 1. We agree with the General Counsel's contention that we should not withhold our processes concerning this dispute nor defer to the parties' arbitration procedures. IBACKGROUND The Union was originally certified as the collective- bargaining representative of Respondent's employees 1 This rule, rule 12, reads as follows "An employee shall not engage in solicitation of any sort during working time nor distribute literature in work- ing areas at any time, nor shall anyone make collections or sales or possess items for sale on Company property without permission " in an appropriate unit early in 1971. Although bar- gaining for a contract began shortly after certifica- tion, agreement was not reached until September 17, 1971, almost 6 months later and after a lengthy strike. The contract executed on that date was to remain in effect for a period of 1 year. In late August 1972, pursuant to a decertification petition, the Board con- ducted a further election among the unit employees. The Union failed to receive a majority of the votes and was decertified. However, the parties continued to administer the contract until its expiration on Sep- tember 17, 1972. The dispute in this case arose while the contract was in effect, and before the Union was decertified. 11 RELEVANT CONTRACT PROVISIONS The contract contains, inter alia, a grievance provi- sion providing for the resolution of "All employee grievances" in a four-step procedure culminating in final and binding arbitration. The provision, in perti- nent part, states: GRIEVANCES: All employee grievances as hereinafter defined shall be settled in the follow- ing manner: a. The employee will present his grievances either directly or through his steward to his fore- man. b. If satisfactory settlement has not been ob- tained, the steward shall reduce the grievance to writing, in triplicate, on blanks furnished by the COMPANY. The foreman shall insert in the ap- propriate place on the form his disposition on the matter and will sign and date same. Two copies shall be turned over to the Shop Committee Chairman and one copy retained by the Fore- man. The Shop Committee Chairman with the de- partment steward, if desired, shall then attempt to settle the grievance with the General Manager or other persons designated by the COMPANY within three (3) working days. c. Upon request of the Shop Chairman or COMPANY, a UNION representative or Business Agent will discuss the matter with the General Manager at the mutual convenience of both par- ties but within five (5) working days. d. Should the parties fail to reach an agree- ment, the issue will be referred in accordance with the rules then obtaining of the American Arbitration Association. The decision of the ar- bitrator shall be final and binding upon both parties and the arbitrator's fees and expenses shall be borne equally by both parties. [Emphasis supplied.] In addition, the contract contains a "Management 205 NLRB No. 36 THE SENG COMPANY Rights" clause which provides: ... the right to ... discipline employees for cause, to require employees to observe Company rules and regulations not inconsistent with this agreement . . . are vested solely in the Compa- ny; provided that none of these functions of management shall be exercised in violation of any provisions of this contract. III THE ADMINISTRATIVE LAW JUDGE'S DECISION The Administrative Law Judge concluded that the dispute herein as in National Radio, supra, is basically one of contract interpretation , namely, were the em- ployees disciplined in the language of the Manage- ment Rights provision of the contract , "for cause," and that, as in National Radio, the dispute would in- volve only a breach of contract were it not for the allegations of antiunion motivation . He therefore con- cluded that the aforementioned contract grievance procedure would encompass the matter . In addition, the Administrative Law Judge found no impediment to a full and fair arbitration proceeding because the Union is no longer the collective -bargaining represen- tative of the employees and its contract with Respon- dent has expired . In this regard he pointed out that the Union still has legal status under Wiley v. Livingston, 376 U.S. 543, to press to conclusion any grievances based on events occurring within the term of the con- tract. He also noted that , since the Union participated in this proceeding which was tried months after the contract's expiration, there is no reason to believe that it will not vigorously prosecute this grievance at all stages, but that, if the Union should not elect to do so, the employees involved , as beneficiaries under the contract, may do so on their own. IV DISCUSSION In Collyer Insulated Wire, supra, we held that, where a dispute between a union and an employer presents an issue cognizable under both the Act and the par- ties' collective-bargaining agreement, it ought, in the first instance, to be submitted for resolution in the manner which that contract prescribes, subject to fur- ther review by the Board where appropriate. While recognizing that the decision to require parties to uti- lize mandatory contractual procedures first involves an accommodation between "the statutory policy re- flected by Congress' grant to the Board of exclusive jurisdiction to prevent unfair labor practices" 2 and "the statutory policy favoring the fullest use of collec- tive bargaining and the arbitral process," 'we none- 2 Collyer, supra 201 theless concluded that where the contractual remedy provides "a quick and fair means for the resolution of [the] dispute," 4 it ought to be employed prior to the submission of the dispute to the Board. In refining this policy in National Radio, supra, we stressed that deferring to the arbitral process would fulfill our duty "once an exclusive agent has been chosen by employ- ees to represent them" 5 to "protect the structure of collective representation and the freedom of the par- ties to establish and maintain an effective and produc- tive relationship." 6 (Emphasis supplied.) Consistent with our Spielberg doctrine,' we have declined to defer to arbitration in cases in which, for pragmatic rather than formal contractual reasons, the arbitration procedures do not in fact afford the ag- grieved employee a "quick and fair means" for resolv- ing the dispute. For example, in Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB No. 2, we refused to defer to arbitration because "the interests of . . . the alleged discriminatees-are in apparent conflict with the interests of the Union and certain of its officials, as well as with the interests of Respon- dent." 8 A finding that a harmony of interests exists which would warrant deferral also requires that the contract- ing party in question be willing to carry the dispute to arbitration and press the discriminatee's position in that proceeding. In determining that such a harmony of interests was absent in Kansas Meat Packers, supra, we pointed out that "[t]he Union, concededly, never investigated the circumstances of these discharges, never filed a grievance with respect thereto, and did not file unfair labor practice charges." I The existence or lack of harmony of interests between the alleged discriminatees and a party to the contract naturally depends in part on the circumstances of each case and an examination of the likelihood of the appropriate party to the contract taking the case to arbitration. Applying these principles to the facts herein, we conclude that, where, as here, the Union involved has been decertified, our primary motivation in deferring to arbitration, namely, that of facilitating and fos- tering an existing collective-bargaining relationship, cannot by definition be achieved. Moreover despite the Administrative Law Judge's optimism, we are not willing to assume, perhaps to the discriminatee's detri- ment, that a decertified union which has nothing to gain and economic resources to lose if it chooses to go to arbitration will fully pursue the grievances of these 3 Id 4 Collyer, supra 5 National Radio, supra 6 Id 7 Spielberg Manufacturing Company, 112 NLRB 1080. 8 Kansas Meat Packers, supra 9 Kansas Meat Packers, supra 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees and thus obtain a "quick and fair" resolu- tion thereof, despite its legal status under Wiley v. Livingston to do so. Finally, as the contract grievance and arbitration procedure after the first step speaks only of the Union and the Company, we find that, contrary to the Administrative Law Judge, it is ex- tremely doubtful that these employees have indepen- dent status to pursue their rights under the arbitral process if the Union declines to represent them. For these reasons, deferral to arbitration is not warranted in this case . Accordingly, we shall remand this case to the Administrative Law Judge so that he may make the appropriate findings of fact and credibility resolu- tions and issue a supplemental decision. ORDER It is hereby ordered that the Administrative Law Judge shall prepare and serve on the parties a supple- mental decision containing findings of fact, conclu- sions of law, and recommendations in accordance with this Order and that, following service of such supplemental decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applicable. DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Administrative Law Judge: This case tried before me at Leitchfield, Kentucky, on December 6 and 7,1 with all parties present and duly represented, in- volves a complaint pursuant to Section 10(b) of the Nation- al Labor Relations Act (herein the Act), which alleges in substance that The Seng Company (herein Respondent or Company) discriminatorily applied and enforced a no-soli- citation and no-distribution rule by permitting solicitations and distributions for activities other than union activities, while disparately enforcing the rule against union activities with respect to employees known to it to be union adherents and sympathizers ; discriminated against three employees by unjustly accusing them of violating the no-solicitation rule and then reprimanding them therefor; and discrimi- nated against another by discharging him for the same rea- son; all because of their membership in and assistance to Furniture and Bedding Workers Local 18-B, United Furni- ture Workers of America, AFL-CIO, in violation of Section 8(a)(1) and (3) of the Act. By answer, Respondent admitted certain allegations of the complaint, but denied the commis- sion of any unfair labor practice. Additionally, Respondent contended at the trial that all aspects of the dispute here involved should be settled through arbitration. For reasons hereafter stated , I find it unnecessary to consider the com- plaint on its merits, and recommend that the parties pursue resolution of the dispute between them through arbitration 1 This and all dates herein are 1972, unless otherwise indicated in accordance with their agreement. At the trial all parties were afforded full opportunity to examine and cross-examine witnesses , to introduce relevant and material evidence, to argue orally on the record, and to submit briefs . Oral argument was waived. A brief submitted by the General Counsel has been duly considered. Although counsel for Respondent stated on the record his intention of filing a brief, no such brief has been received . Upon the pleadings, stipulations of counsel, evidence including my observation of the demeanor of the witnesses while testify- ing, and the entire record in the case , I state the following: Summary of Fact 2 Background In February or March 1970, Respondent opened its Leitchfield plant, the one here involved , for operation. With the opening of that plant, Respondent posted a set of rules governing the conduct of employees which has remained posted at all times since. Involved in this proceeding is rule 12, which reads: An employee shall not engage in solicitation of any sort during working time nor distribute literature in work- ing areas at any time ; nor shall anyone make collec- tions or sales or possess items for sale on Company property without permission. The penalty provided in the rules for breach of this provi- sion is a warning for a first offense, and discharge for a second offense. Late in 1970 or early 1971, after a Board-conducted elec- tion pursuant to petition filed by the Union , the latter was certified as the collective-bargaining representative of Respondent's employees in an appropriate unit . Although bargaining for a contract commenced shortly after certifica- tion, agreement was not reached until September 17, 1971, when a contract was entered into for a term of 1 year from that date. The contract contains, inter aim, a grievance pro- vision providing for the resolution of "all employee griev- ances" in a four-step procedure culminating in final and binding arbitration. Additionally, a paragraph in the con- tract entitled "Management Rights," provides: ... the right to . . . discipline employees for cause, to require employees to observe Company rules and regu- lations not inconsistent with this agreement . . . are vested solely in the Company; provided that none of these functions of management shall be exercised in violation of any provision of this contract. The agreement brought to an end a strike and picketing which had been in progress for an extended period, with some employees honoring the picket line, while others con- tinued at work.3 In late August 1972, the Board conducted a further election in the unit involved, pursuant to a decerti- fication petition, which election the Union lost, and it was decertified. However, the parties continued to administer the contract until its expiration on September 17. 2 No issue of commerce or labor organization is involved . The complaint alleges and the answer admits facts which establish these elements. At the trial, the intense feeling between the proumon and antiunion employees was readily apparent THE SENG COMPANY The Issues Raised by the Pleadings Evidence adduced by the General Counsel shows that on December 4, 1971, Respondent issued a written reprimand to employee Ed Matthews for violating rule 12 by soliciting a fellow employee to sign a union card during working time. On April 25, Respondent issued another written reprimand to Matthews alleging the same breach of the rule, and that being a second offense Matthews was, as provided in the rule, discharged. Additionally, the General Counsel's evi- dence shows that on April 4, 1972, Respondent issued writ- ten reprimands to employees Wade Hatcher, Farley Logsdon, and David Miller for violating rule 12 by soliciting for the Union while working. Testifying on this aspect of the case, Logsdon admitted that he had engaged in the prohib- ited conduct, claiming that he was unaware of the rule, but Matthews, Hatcher, and Miller each denied that they had at any time engaged in solicitation while working. Respon- dent, on the other hand, offered the testimony of employees who testified concerning the time, place, and circumstances under which they were solicited by one of the named em- ployees. Respondent claims that it was on the basis of the facts shown by its testimony that it issued each of the repn- mands referred to, and discharged Matthews. The General Counsel does not attack the validity of rule 12, either on its face, or as applied.' His theory of violation is twofold. He argues first that, except for Logsdon, none of the employees involved in fact solicited during work, and that the reprimands were in fact issued to retaliate against them for their activities in support of the Union. Secondly, the General Counsel argues that,even assuming that each of the employees involved did in fact solicit in violation of the rule, Respondent enforced its rule only against solicita- tion for the Union, and permitted solicitation for other pur- poses.' In the view I take of the case, it is unnecessary to decide any of the contentions advanced by the General Counsel for the decision here is, in my view, controlled by National Radio Company, Inc., 198 NLRB No. 1. In the instant case, as in National Radio, supra, the dispute is basically one of contract interpretation, namely, were the employees disciplined in the language of the Management Rights provisions of the contract, "for cause," an issue, as the Board pointed out, frequently resolved by arbitrators, In this connection, it may be noted that General Manager Glutting testified without contradiction that he construes and applies the rule , and has so notified the employees, that solicitation for or against a union is permitted in all areas of the plant, except when they are actually performing work, and may be engaged in during lunch and break periods, even though such periods are in some instances paid for as time worked 5 The General Counsel adduced testimony that Respondent permitted solicitation in a particular department to collect money to purchase a gift for a foreman, on another occasion permitted a collection in the plant for funeral flowers for the mother of the plant nurse, and also permitted solicitation of money for an employee who had been discharged just prior to Christmas 1971, whose family was in need General Manager Glutting testified that he was informed of and gave his permission for each of the aforesaid activities. Although Glutting conceded that such activities were contrary to the rule, in his view no violation thereof occurred because he had given permission for the solicitation There is also evidence tending to show that employee Elmore handed a notice of checkoff revocation to the chief steward while the latter was at work Glutting testified that he investigated this incident and on the basis of the information he gathered , principally from Elmore, there had been no violation of the rule 203 198 NLRB No. 1. And also here, as in National Radio, the dispute would involve only a breach of contract were it not for the allegation that the employees involved were disci- plined solely because of their prominent part in supporting the Union. And as the Board recently held in Gulf States Asphalt Company, 200 NLRB No. 100, the term "proper cause" ordinarily excludes discharge or other discrimina- tion, for discriminatory reasons. Although the contract here only used the term "cause," for present purposes I see no distinction between "cause" and "proper cause." 6 Nor do I see any inherent impediment to a full and fair arbitration proceeding, such as existed in Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB No. 2, because the Union is no longer the collective -bargaining representative of the employees, and its contract with Re- spondent has expired. Notwithstanding the loss of its repre- sentative status and the expiration of its contract , the Union has legal standing to process to a conclusion any grievance based on events occurring during the term of the contract. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 551-555 (1964). As the Union appeared and participated in this pro- ceeding, which was tried months after the expiration of the contract, there is no reason to believe that it will not vigor- ously prosecute this grievance at all stages. But, should the Union elect not to do so, the employees involved , as benefi- ciaries under the contract , may do so on their own. Accordingly, for the reasons stated , I find and conclude that the purpose and policies of the Act would best be served by relegating the parties to the grievance and arbitra- tion provisions of their contract for resolution of the dis- putes involved, and to dismiss the complaint herein, but retaining jurisdiction for the purposes set forth in the Board's Order in National Radio, supra.8 Therefore, upon the foregoing and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 6 I do not regard the Board's recent decision in Pauley Paving Company, Inc, 200 NLRB No 124, as requiring a different result here. In Pauley, the Board found as a fact that the parties had agreed that the contract was not to be effective at certain jobsites Here the contract was in effect at the time of the critical events 7 1 am not unaware of the differences of opinion that have been voiced as to the correctness of the Board's view that in certain cases it should defer to arbitration Regardless of my views on the subject, my duty is clear, and that is to follow applicable decisions of the Board until such time as the Board may overrule them, or the issue is put to rest by the Supreme Court Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 772-773, Iowa Beef Packers, Inc, 144 NLRB 615, 616, S N C Manufacturing Co, Inc, 147 NLRB 809, 821 8 The summary of facts hereinabove set forth is based mainly on testimony which is not in dispute. Where dispute does exist, I have set forth both versions without attempting to resolve credibility I have done so because, if the Board concurs in my recommendation that it defer to arbitration, the arbitrator should have complete freedom to make his own fact finding with- out any intimation as to how I might resolve any credibility issue Should the Board disagree with my disposition of the case, it can make its own fact findings should it feel so disposed, or remand the case to me for that purpose 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDERS The complaint herein be, and the same is, dismissed in its 9In 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 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 entirety; provided, however, that jurisdiction over this pro- ceeding is retained for the purpose of entertaining an appro- priate and timely motion for further consideration upon a proper showing that (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 and arbitration procedure has not been fair and regular or has reached a result which is repugnant to the Act.