National Steel Corp.

880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Granite City Steel Company, Subsidiary of National Steel Corporation and International Chemical Workers Union, Local No. 50, AFL-CIO. Cases 14-CA-7381 and 14-CA-7502 June 24, 1974 DECISION AND ORDER On January 31, 1974, Administrative Law Judge Ramey Donovan issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed cross-exceptions, an answering brief, and a brief in support of its cross- exceptions. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBERS FANNING AND JENKINS , dissenting: For the reasons we have expressed heretofore in Collyerl and its progeny, we would determine the merits of the issues raised here. Unilateral change of longstanding conditions and practices of employ- ment, some of 30 years' duration, which by any standard of contract law control the meaning of contract provisions, raises an issue under the statute which the arbitrator is not competent to resolve. I Collyer Insulated Wire, 192 NLRB 837. DECISION RAMEY DONOvAN, Administrative Law Judge: The charges in this case were filed by the Union on April 26 and July 27, 1973. The complaint, issued by the General Counsel of the Board through the Regional Director of the Board on September 13, 1973, alleged that the following conduct of Respondent , Granite City Steel Corporation, violated Section 8(a)(1) and (5) of the Act: 1. Since on or about April 15, 1973, Respondent has unilaterally changed existing terms and conditions of employment by discontinuing payments for overtime for work performed by employees after a shift change I The Union had also filed a motion to correct transcript, which, being unopposed is granted . There are, I believe, some errors in the transcript other than those covered by the aforesaid motion but since I do not regard when the employees had not worked a full 8 hours on the prior shift. 2. Since on or about April 29, 1973, Respondent has unilaterally changed existing terms and conditions of employment by discontinuing "call out" pay, to wit, payment of a 14 hour guarantee to all employees called out to work on a day on which they are otherwise scheduled to work. 3. Since on or about April 29, 1973, Respondent has unilaterally changed existing terms and conditions of employment by withholding meal tickets from employees when employees have been paid in excess of straight time for the prior shift or where they have worked less than 8 hours on the prior shift. Respondent, in its answer, denies the commission of the alleged unfair labor practices and avers the existence and availability of a grievance-arbitration provision in the contract between the Union and the Respondent Compa- ny. The case was tried at St. Louis, Missouri, on October 16, 1973. All parties were represented by counsel and participated fully in the trial. At the conclusion of the case, the parties waived oral argument and, subsequently, all filed briefs that ably presented their respective conten- tions.) FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent is a Delaware corporation and, at all times material, the following are the relevant and material facts regarding its business insofar as the Board's jurisdiction is concerned. Respondent had its principal office and place of business in the city of Granite City, Illinois. Respondent is engaged in the manufacture and nonretail sale and distribution of steel and related products. The Granite City plant is the only facility involved in, and referred to, in this proceed- ing. In a representative 12-month period, Respondent, in the course of its operations, manufactured, sold, and distribut- ed products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from its plant directly to points outside Illinois. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES For approximately 30 years, there have been contractual relations between the Union, as the collective-bargaining agent of the unit employees,2 and the Employer at the Granite City plant . By merger, National Steel acquired Granite City Steel Company on August 14, 1971. A contract, dated September 1, 1971, was entered into them as material or as obstacles to understanding what was actually said at various points, no further corrections are here undertaken. 2 Approximately 1,000 in number. 211 NLRB No. 135 GRANITE CITY STEEL COMPANY between "Granite City Steel Company, subsidiary of National Steel Corporation, Blast Furnace Department, Granite City, Illinois," and the Union, for the term August 1, 1971, to October 1, 1974. The contract is a 97-page printed booklet and among its provisions is article XVI which provides a broad five-step grievance procedure.3 In the event a grievance is not settled by step 4 of the grievance procedure, the matter may be taken to step 5, which is arbitration. The arbitrator or "impartial umpire," as he is referred to in the contract, is chosen by mutual agreement of the parties. In the event that the parties are unable to agree upon an arbitrator, it is provided that a list of seven arbitrators will be secured from the Federal Conciliation Service and the parties will select an arbitrator therefrom. It is further provided that the arbitrator, "insofar as shall be necessary to the determination of such grievance" will "have authority to interpret and apply the provisions of this Agreement. . . . Only questions as to the interpretation or application of or compliance with the provisions of this Agreement and such local working conditions as may be in effect at the time of the grievance may be submitted to an umpire. The decision of the umpire shall be final and binding.. . . Walter, vice president of industrial relations, assumed his position on February 1, 1972, but apparently was not at the plant physically on a full-time basis until March 1972. McCreary, manager of industrial relations, assumed his position on April 24, 1972, and came to work at Granite City at that time. National City makes periodic audits of its subsidiaries' and divisions' practices and procedures and did so at Granite City. Although the record does not show the precise time of the audit report at Granite City, it apparently was completed by early 1972. According to McCreary, the audit indicated that there were certain pay practices at the Granite City plant that were not in accordance with the contract between the Company and the Union. As the Company viewed this situation, the particular pay practices, aforementioned, were not only not in accordance with the contract but they were also uneconomic, since the Company was paying more money to employees in certain situations than the contract required. The 14-hour call-out On February 11, 1972, grievance BF 16-72-2 was filed regarding employee Martin of the ironworkers depart- ment.4 The grievance involved the claim that the employee was entitled to 14 hours call-out pay when the er* a)loyee 9 Article XVI Grievance Procedure Should any differences arise between the Com-+any and the Union, or its members employed by the Company, as to the interpretation or application of, or compliance with the provisions of this Agreement regarding working conditions or other matters, or should any dispute of any kind arise, there shall be no interruptions or impeding of the work, work stoppages, strikes or lockouts, on account of such differences, but an earnest effort shall be made by the Company and the Union to settle such differences orderly and promptly in accordance with the procedure set forth in this Article 4 As we have seen, the contract describes the Employer, party to the contract, as "National Steel Corporation, Blast Furnace Department, Granite City, Illinois" While the parties in the record refer to the Ironworkers and other departments, this and other "departments" are 881 was called out to work on a day other than his scheduled day off. Grievance 46723, filed March 1972, involved an employee in the raw materials department and also was about the issue of the 14 hour call-out pay.5 Grievance 51724, filed April 13, 1972, pertained to employee Daley in the storeroom department and involved the 14-hour call- out pay. Employee Garner of the janitor department filed grievance 79726 in June 1972. This grievance involved the matter of 14-hour call-out pay. Two other grievances were filed by janitor department employees in July 1972, involving 14 hour call-out pay. One of these, 99727, was filed by employee Hornbuckle and the other, 100727, was filed by Garner, abovementioned. Both 99727 and 100727 involved the issue of 14-hour call-out pay. Having gone through the various steps in the contract grievance procedure, the Union appealed 16722 and 51724, the ironworker and storeroom grievances, respectively, to arbitration on August 11, 1972.6 The first of the three janitor grievances, 79726, reached the fourth step on August 2, 1972. The Company gave its fourth step answer to the Union by letter of August 14, 1972, and the Union announced its appeal of 70726 to arbitration on August 15, 1972. The fourth step session on the other two janitor grievances, 99727 and 100727, was held on August 31, 1972. Shortly after the janitor instances occurred, i.e., the Company had refused to pay employees 14 hours pay when they were called out to come to work and worked on a day other than their scheduled day off, Phelps, business agent of the Union, spoke to McCreary. Phelps asked McCreary why, if the latter was not going to pay 14 hours pay to employees called out on days other than their scheduled day off, McCreary did not apply this standard or position plantwide in all departments. Except for the earlier relatively isolated instances of an ironworker and a storeroom employee who had been denied 14 hours call- out pay, the Company had not denied this call-out pay throughout the plant. The subsequent denial of 14 hours call-out pay on three occasions in the janitor department in June and July apparently indicated to Phelps that there was now a definitive company policy against such pay. He therefore asked McCreary why the Company was not implementing this policy throughout all departments in the plant. While not denying that Phelps had correctly diagnosed the logical implications of the Company's action, McCreary replied, in substance, that the Company was not implementing its policy in all departments because to do so would stir up or agitate the entire work force. It is fairly clear that McCreary viewed such a stirring up as evidently sections or parts of the ove-all Blast Furnace Department The various grievances, including the above grievance, are all prefixed by the symbol or designation "BF," which, I assume, means Blast Furnace The grievances, also, all are designated by three numbers , separated by hyphens or dashes as in BF16-72-2 above For convenience, I shall hereinafter refer to the various grievances simply by their unhyphenated number and without the BF prefix, e g , 16722 being the February 11, 1972, ironworker grievance, above 5 This grievance was settled pnor to reaching the arbitration stage The record reveals nothing further on this grievance or the reason or basis for settlement 6 As we have seen, arbitration is the fifth and final step in the grievance procedure 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD something to be avoided. What then did McCreary, the Company, have in mind? Viewing the entire record before me, it is my opinion that, since grievances 16722 and 51724, the ironworker and storeroom grievances on the basic issue of 14 hours call-out pay were already well into the grievance procedure pipeline and the janitor grievances were already filed or predictably would be filed because of the importance of this basic issue to the employees and to the Union, as well as, of course, to management, the Company had decided to have its position tested in the grievance-arbitration procedure before implementing its policy plantwide. In view of Phelps' experience and intelligence, I would think it unlikely that he did not suspect why the Company was not, at that point, denying 14 hours callout on days other than an employee's scheduled day off throughout the plant. The record reveals nothing peculiar to the ironworker, storeroom, or janitor departments that would indicate that the Company's policy position on callout would be limited to those departments absent some temporary tactical considerations aforemen- tioned. I reach this conclusion despite the limited explica- tion given by McCreary in the above conversation. After the five grievances, ironworker, storeroom, and three janitor, were in the grievance procedure pipeline, and after the first two, ironworker and storeroom, had been scheduled for arbitration before arbitrator Florey, mutual- ly selected by the parties, Phelps came to McCreary. Phelps, according to his testimony, told McCreary that Phelps preferred to arbitrate the janitor department grievances and placed the earlier two grievances "on hold." Phelps testified that his reason for proposing to arbitrate the janitor grievances on callout, in preference to the earlier nonjanitor grievances on the same subject, was that "there was no past practice in the storeroom or ironwork- ers department of shift work and since this was based on past practice [the Union position that the five grievances were entitled to 14 hours call-out pay was based on the Company's long past practice of making such payments until the Company refused in the instances that were the subject of the grievances] that I would rather go with it [arbitration] in the janitor department." At another point in his testimony, Phelps stated that the reason he wished to proceed to arbitration on the janitor cases and substitute them in preference to the scheduled-to-be-arbitrated ironworker and storeroom cases was because of the past practice in the janitor department and "I thought the case [janitor] was stronger [from the Union's standpoint]." McCreary was agreeable to Phelps' request to proceed to arbitration on the janitor cases.? By letter of October 12, 1972, McCreary w.ute to Phelps to "confirm our conversation ... to delete" grievances 16722 and 51724, ironworker and s`oreroom, "from the list of grievances to be arbitrated before Peter Florey on November 28 and 29, 1972. We further agreed to 7 McCreary testified that Phelps told him that the janitor cases were factually clearer and that he preferred to try the issue of the 14-hour callout in the janitor cases as a "vehicle" instead of using the nonjanitor cases While I am not sure that Phelps used such terms as "vehicle" or a word equivalent to "test case," I believe that under all the circumstances of Phelps' approach to McCreary about using the janitor cases in the scheduled arbitration instead of the prior in time nonlanitor cases, it was not unreasonable for McCreary to believe, as he testified, that both parties substitute" grievances 79726, 99727, 100727, the janitor cases, "for arbitration on those dates." 8 The letter went on to say that the Company had not yet given its fourth step answer on two of the named grievances "because it was our intention to hold these grievances at the fourth step until other cases on the same issue had been arbitrated. Inasmuch as we have agreed to substitute these cases [all three janitor cases ] for those previous cases on the same issue [ironworker and storeroom], I will prepare and forward to you as expeditiously as possible fourth step answers for these two grievances." The Company thereaf- ter effected the last mentioned promised action and the janitor cases were ready for arbitration. The arbitration hearing was held on November 28, 1972, before arbitrator Florey. The Union was represented by attorney Bruhn and the Company by attorney Volk, both of whom discharge the same representative function in the instant case. Witnesses were called, examined, and cross- examined, and documentary evidence was introduced. The transcript of testimony in the above proceeding is part of the instant record. The arbitrator issued his written opinion and award on March 14, 1973. This initial statement in the opinion is: Subject: Past Practice-Payments for Call-Outs The arbitrator states that the three grievances before him9 "have the same underlying issue" and he refers to the Hornbuckle grievance, 99727, as "representative." He then describes the Hornbuckle facts. Since a specific explana- tion of what I have been referring to as the 14-hour call-out issue is desirable I shall s°t forth the Hornbuckle facts in detail. The various factual elements of the grievances were introduced both before the arbitrator and before me in the instant case. Hornbuckle was scheduled to be off, Sunday , July 9, 1972. He was scheduled to work the 3-11 p.m. shift on Monday, July 10, through Friday, July 14, and was again scheduled to be off, Saturday, July 15. A vacancy occurred on the 7 am -3 p.m. shift on Monday , July 10. Employee Hornbuckle was called and came to work to cover the vacancy on the 7-3 shift on Monday, July 10. He worked from 12 noon to 3 p.m. Since he was scheduled to work the 3-11 shift on the same day, he was paid overtime at time and a half for the 3 hours, i.e. 4 1 /2 hours pay, plus his straight time rate for the 3-11 shift that he worked. The Union's position on the grievance was and is that Hornbuckle should have received 14 hours pay for the 3 hours he worked on the 7-3 shift since he was called out to work on that shift.i° The Company's position was and is that since the employee filled a vacancy on the day he was scheduled to work, he was not eligible for the 14-hour call- out pay. were proceeding to arbitration on theJamtor cases to test the basic question of whether or not employees were entitled to the 14-hour call-out pay, since this was the issue in all five pending cases. 8 The letter then refers to three other grievances scheduled for arbitration but these grievances are unrelated to the instant case. 9 The three janitor grievances 10 The same basic issue is involved in all the 14-hour call-out grievances GRANITE CITY STEEL COMPANY 883 As set forth by the arbitrator in his opinion, "The relevant contract provisions of Article V read:" 11 (par. 18) In the event an employee is called to work on a day on which he is scheduled to be off, without having agreed to work on such a day prior to leaving the plant on the last shift worked, he shall have a guarantee of twelve (12 hours) pay plus two (2) hours call-out pay, for the particular shift he is called out on.12 However, when it is determined that an employee has worked seven consecutive days within a work week the employee's pay will be recalculated to pay double time for the work performed on the second day of his two unscheduled days and if a call-out was involved on such day, the regular two-hour call-out pay will also apply. . . . (par. 19) If an employee is requested and agrees, prior to leaving the plant on the last shift worked, to work on a day on which he is scheduled to be off, he shall be paid at the rate of time and one-half for such day; provided, however, an employee working seven consecutive days in the week will be paid in accordance with the seventh day provision as outlined in Paragraph 15. (par. 20) In the event an employee is called out to work after termination of the day shift (4:30 p.m.), due to breakdown of equipment, he shall be paid as follows: (par. 21) 1. Two (2) hours straight timeas'call- out'pay. (par. 22) 2. Time and one-half pay for actual hours worked, but not less than four (4) hours at time and one-half pay.13 The arbitrator's opinion states that for approximately 30 years the Employer has paid 14 hours pay for a callout as if the callout had been made under the conditions of article V, paragraph 18. The evidence before me is to the same effect, i.e., for 30 years 14 hours pay had been paid for a callout irrespective of the number of hours worked and irrespective of whether or not the employee called out was on his scheduled day off. Both before the arbitrator and before me, the evidence reveals that early in 1972, after an audit of pay practices and so forth, the Company, unilaterally, in certain departments, but not in all depart- ments in the unit, refused to pay 14 hours call-out pay because it believed such pay was not required by the contract or in any of a series of written supplement agreements between the parties. In the Hornbuckle case, for instance, the employee was not called out on his 11 The same contract evidence was introduced in the instant hearing. The written Hornbuckle grievance, as presented to the Company by the union steward on behalf of the employee, cited art. V, par. 18. 12 It was and is the Company's position that Hornbuckle and the other 12-hour call-out grievances were not called out on a day on which he or they were scheduled to be off. This is factually accurate . Footnote nine. 13 Paragraph 20, 21, and 22 apply to maintenance employees who are also in the unit represented by the Union. Footnote mine. 14 The Company also took the position that the 14-hour call-out pay practice had its origin in the 1940's in the World War II period and that such conditions no longer exist and that the continuance of the practice was economically unjustified. Thus the arbitrator in describing this argument refers to the Company's contention that the practice arose "during the manpower shortage of World War II with its restrictions on wage increases. . 15 The only exception to the 30-year practice was with respect to scheduled day off and, in the Company's view, he therefore did not meet the 14-hour call-out pay condition set forth in article V, paragraph 18 of the contract.14 The opposing position is and was that the long established practice of paying 14 hours pay in all call-out situations could not be changed unilaterally.15 By describing the section of the arbitrators opinion entitled "Findings," I will note that the arbitrator at the conclusion of the arbitration hearing received briefs from counsel for the Union and for the Company, respectively. These were briefs that ably and cogently set forth the contending positions, and, from reading them16 and from reading the arbitrator's opinion and findings, I have no doubt that he was aware of what I consider to be the basic issue in the 14-hour call-out matter, i.e., whether or not the 30-year practice was unilaterally immutable despite any other factors in the case, or, as the Union stated in its brief to the arbitrator. "The proper resolution of these griev- ances is dependent upon the interrelationship of the above- mentioned contractual provisions and the parties' past practice." Initially, in his findings, the arbitrator rejected the Company's "successor" argument and found that the takeover of Granite City by National Steel had no impact on the contractual relationship between the parties, particularly since National became a party to the Septem- ber 1, 1971, agreement.17 The arbitrator states his "reasons why past call-out payments cannot reasonably be considered a practice in the commonly accepted labor relations meaning." He then states: First of all, the subject matter of the alleged practice is specifically covered in the Basic Agreement. The parties have specifically bargained on the subject- matter of call-out pay and the unilateral extension of call-out benefits in the 40s clearly conflict with the unambiguous provisions of the Basic Agreement. s s s * s Moreover, in light of the long standing procedure of reducing local understandings to writing as Supplemen- tal Agreements, the reference to `local working condi- tions' in Marginal Paragraph 87.13 [of the contract] can only reasonably apply to such written Supplemen- tal Agreements ....18 Second, a practice must have uniform application and employees in the maintenance department who, on callouts, were paid in accordance with article V, par. 20-22 of the contract. 16 The briefs are in the instant record. 17 No "successor" contention has been made in the instant hearing or in the Company's brief to me. I therefore do not consider that any "successor" question is before me. 18 Footnote mine. Article XIX of the contract provides: "It has been the practice of the Company and the practice of the Company and the Union to work out supplementary agreements . These agreements have been mutually satisfactory and are continued as a part of this contract " Hamilton, a supervisor, testified in the arbitration hearing that he was hired in 1955 as a rank-and-file employee. He was a union steward in 1960; union secretary and member of the negotiating committee in 1962-63; business agent of the union in 1965 and 1966 and then a company supervisor. He testified that until 1965 both the Union and the Company were from time to time confronted with alleged agreements or supplements (Continued) 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be nondiscriminatory. Here the alleged practice clearly does not apply under circumstances outlined in Marginal Paragraph 19 of Article V and clearly discriminates against maintenance employees who are called out . . . Discrimination as to wages is specifical- ly prohibited by Article II, Marginal Paragraph 9. Finally, . . . it should be noted that the Union repeatedly proposed changes in the quoted contract provisions to provide uniform application for the call- out payments. For instance, in 1968, the Union's proposals included the following: Paragraphs 18 and 19-Call Out-change to provide: An employee who is called out ahead of his schedule and then continues to work his regular shift will be paid time and one-half his regular rate for his regular shift with meal ticket and all other benefits. All call-outs for all workers will be paid for at the rate of fourteen (14) hours whether on day off or after completion of shift. All breakdown call-outs will be paid at the rate of fourteen (14) hours for the shift called with time and one-half for hours worked after any shift break. Continuing, the arbitrator stated, "the submission of this proposal is at least an implicit acknowledgement by the Union that the alleged practice lacked contractual recogni- tion." 19 "In the light of these unique circumstances , it must be concluded that the disputed call-out payments were made unilaterally by supervision in its discretion without creating a practice and that payments which exceed the requirements of the collective bargaining agreement can be discontinued." 20 The arbitrator goes on to say that the indication is that the decision to discontinue the 14-hour pay was not communicated to the grievants prior to their acceptance of or understandings pertaining to various parts of the basic contract . In 1965, the parties decided to "negotiate and place in a book all recognized supplements agreed to by both parties." This was done, according to Hamilton. In the instant hearing McCreary testified, without contravention, that "the supplement book makes itself self-exclusive. The preamble to the supplement book states that it contains all of the supplemental agreements outstanding between the parties as of some time in 1966 when it was entered into and it has subsequently been added to with duly executed supplemental agreements." As far as I am aware, no supplemental agreement was introduced or alleged to exist before the arbitrator or in the instant hearing that states in words or in substance that all callouts will be paid for at the rate of 14 hours whether the employees is on his scheduled day off or not. I am aware that article XIX, above, does not state that only those practices, understandings, or agreements that are in the book of supplementary agreements are valid and binding . I find it unnecessary to state my overall interpretation of this supplementary agreement aspect since, as will appear at a later point, I am not rendering a de novo opinion on the merits of the issue that was before the arbitrator. 19 Footnote mine. At the arbitration hearing Hamilton testified that "the union, to my personal knowledge, in 1961, '62, '63, and'65, [the matter also came up in the 1968 and 1971 negotiations . The arbitrator refers to the 1968 proposals specifically ] was fearful because there was no protective language, and at each negotiation would present a proposal to the Company on paying all call-outs, even the breakdown call-outs, at the fourteen hour rate." According to Hamilton , these proposals were "asked [by the Union ] and respectively refused [by the Company ]." Phelps referred to the Union's the callouts and therefore the grievants are entitled to the 14-hour pay for the shifts which gave rise to the grievances but not thereafter. "A second unresolved problem was posed when it became known at a later arbitration hearing involving the same parties that the disputed payments were not discon- tinued uniformaly for all employees in the bargaining unit ... which, in itself, may present a violation of the non- discrimination provisions of Article II, Marginal Para- graph 9. Since this subject was not discussed in the processing of these grievances, the case is returned to the parties for further consideration. Should this issue remain unresolved thirty days from the date of this award, the parties shall contact this arbitrator informally to decide on procedural steps for the final disposition of the case." After receipt of the arbitrator's decision, the Union and the Company met on March 22, 1973. McCreary suggested that the Company and the Union jointly issue a letter in the plant, stating that the Company would discontinue on a specific day the 14-hour call-out pay for callouts on days when an employee was scheduled to work (was not scheduled off). Phelps rejected the proposal. He said that the arbitrator had exceeded the scope of what he was supposed to arbitrate and that it was and is the Union's position that the grievance was limited to the janitor department. McCreary contended that the arbitrator had decided with respect to the grievance that the Company was not obligated to pay the 14-hour callout and had also decided that for the Company to discontinue 14-hour callout only in the janitor department would violate the nondiscrimination clause of the contract. Phelps said that if the Company wanted to discontinue the 14-hour call-out pay, it should wait until the next contract negotiations in 1974 or the parties should bargain about the matter until they reached agreement. McCreary did not agree to these suggestions. McCreary also said that the arbitrator had decided that pending grievances should be paid the 14- hour callout because the employees involved had not been notified beforehand of the discontinuance of the 14-hour concern about the lack of universal application of the 14-hour call-out pay. He testified, "We wanted it that all call-outs would be provided , would be paid at the rate of fourteen hours, and we wanted it in writing " Again, when his attention was directed to the two last paragraphs , above, of the 1968 union proposal, one of which specified "all call-outs .... and one which referred to "all break down call -outs ..., " he was asked if "All call- outs" related to breakdown callouts. He answered, "It, in part, related to the whole thing, but we also wanted it entered into the contract , you know, because we were receiving it and we felt that it should be written down." This would indicate that the Union desired (1) to have the existing practice of 14-hour call-out pay, for all employees except maintenance employees on breakdown, committed to writing in the contract; and (2) to also provide in writing that maintenance employees on breakdown would receive 14-hour call-out pay. In the instant hearing, union counsel stated , ". . . 1968 at least and onward [the call-out matter was again discussed in the 1971 negotiations, apparently along the same lines and with the same result as previously] the union has made an attempt to get what is an existing practice into writing . They have been rebuffed by the Company ." In 1968, in response to the union proposal, the Company noted and acknowledged that the employees were enjoying 14-hour call -out pay on days when they were not scheduled to be off . However, the Company refused to agree to place this matter in writing and incorporate it into the contract unless the Union would agree to grant the Company much wider latitude in assignments of work in such situations . The Union refused to agree to the latter so the 14-hour call-out proposals of the Union were not agreed to by the Company and were rejected. 20 Arbitrator's opinion. GRANITE CITY STEEL COMPANY 885 callout but that such payments would not be due thereafter; McCreary said, according to Phelps, that the Company would therefore pay all the pending grievances the 14-hour callout, including the janitor, ironworker (Martin), and storeroom (Daley) grievances.21 The parties then concluded their meeting by agreeing that they would have to return the matter to the arbitrator. McCreary drafted a proposed letter to the arbitrator to be signed by both parties. He submitted the letter to Phelps, who made revisions thereon and McCreary agreed to the revisions. This joint letter to the arbitrator, dated March 27, 1973, signed by McCreary and Phelps, advised the arbitrator that the application of his findings "has not been mutually agreed to by the parties." The letter stated that, as the arbitrator was aware, the Company had not discontinued the 14-hour call-out pay in all departments. Among the reasons for this limited discontinuance was the Company's unwillingness "to risk the extra-legal consequences in which such a unilateral action might result. Rather, the Company elected to attempt to resolve the issue by discontinuing the payments in the Janitor Department, processing the ensuing grievances to arbitration and applying the arbitrator's decision to all of Local 50's jurisdiction. Local 50 sought to resist any change in the '14 hour call-out' payment." The letter continued, and described "the dispute," to wit, stating that the 14-hour call-out matter as to employees in the janitor department "has now been decided by you. However in your findings you state that a question of discrimination may arise under marginal paragraph 9 of the Basic Agreement because the Company has not discontinued the practice uniformly throughout the Bar- gaining unit." The letter states that the parties met March 22, 1973, pursuant "to your Award." The position of the parties on March 22 is then described. The Company asserted that the award does not require it to make further payments exceeding the contract provisions and that to avoid being charged with violating the nondiscrimination provision of the contract, the parties should jointly advise all employees in the bargaining unit that the payments would be discontinued as of a specific date in the immediate future. The litigated janitor grievances would be paid and pending grievances would be paid absent proof of prior notice of discontinuance of the 14-hour callout by the grievants. "Taking the position that your award related only to the Janitor Department, the Union rejected this proposal and suggested that the parties agree to continue the 14 hour call-out payments without change until the expiration of 21 Although, of course, the Union was glad to have the Company acknowledge that all the pending grievances on the callouts would be paid, it was quite clear that the Company's action was pursuant to the arbitrator's decision and that the inclusion of the nonjanitor grievance payments was also according to the Company's view of the scope of that decision. On this aspect at least the Union did not argue that the arbitrator's decision was limited to the janitor department and had no effect beyond that department. 22 Neither in this colloquy with the arbitrator nor in the instant hearing has the Union claimed or adduced evidence, that might distinguish other departments from the janitor department on the matter of 14-hour callouts, other than the argument that the arbitrator's authority was limited to the janitor grievances before him . As we have seen, the parties had substituted the janitor cases in arbitration in place of the chronologically earlier and previously scheduled ironworker and storeroom cases at the Union's request . The Union's request was based on its belief that the janitor cases the current collective agreement . This suggestion was rejected by the Company. The parties then agreed to detail their dispute in a jointly signed letter to you...." After the arbitrator received the above letter, there was a three-way telephone conversation between the arbitrator, Phelps, and McCreary. According to Phelps, the arbitrator asked what the parties wanted him to do. McCreary said that he thought that the arbitrator had decided the matter properly. Phelps said that the only matter before the arbitrator had been the janitor department grievance and that Phelps wanted nothing done with respect to other departments and that the arbitrator had no authority as to the rest of the departments. The arbitrator replied that he had already decided that the Company is "not obligated to pay in this matter" except as to the grievants who had not been notified beforehand of the discontinuance of the 14- hour callout, "and to only apply this to the janitor department would be against the non-discrimination clause in the contract." Phelps said that he did not want the arbitrator to do anything regarding other departments and the arbitrator lacked such authority.22 The arbitrator said, "I have already decided the case and I will correspond with you." By letter of April 13, 1973, to Phelps and McCreary, the arbitrator stated: Confirming our telephone conversation in which we discussed your joint letter of March 27, 1973, no further proceedings are required. As stated in Marginal Paragraph 11 of my award the disputed call-out payments can be discontinued, but such action, as spelled out in Marginal Paragraph 13, must be uniform. Under these circumstances, the Company has correctly offered to implement my award by paying the grievants in the cases which were the subject of the award and in those grievances which have been held pending receipt of the award, because their department was singled out. In a conversation with Phelps a few days after the parties had received the above letter, McCreary suggested that, in view of the arbitrator's decision, they post a joint notice in the near future to the effect that the Company would no longer pay 14 hours pay when the callout was not on the employee's scheduled day off. Phelps refused, reiterating that the arbitrator had exceeded his authority. Phelps said he was willing to bargain about the matter "if he were stronger from the union standpoint because of longer and clearer past practice in that department . I find it difficult to believe that if the arbitrator had found in the janitor case that the Company could not unilaterally discontinue the 14-hour callouts, that the Union would not have considered this dispositive of the matter in not only the janitor but in other departments. Indeed in the Union's brief to the arbitrator, submitted after the hearing and prior to decision, the Union stated: This union further respectfully submits that the Company ought to be, and respectfully requests that it be, instructed that both by the term of the contract as written, and by a binding past practice which has become an inviolate term of the contract , it may not in the future fail to pay employees who work shift work 14 hours for any and all call-outs under any circumstances, except as specifically provided for in paragraph 19 of the basic agreement. 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [McCreary] would wait until the '74 negotiations ses- sions...... Later in the day, McCreary advised Phelps that he was sending him a copy of the notice McCreary was posting "today or tomorrow." Phelps received the notice, evidently on April 23.23 The notice that was posted, dated April 24, 1973, stated that pursuant to the arbitra- tor's decision, the employees were hereby notified that effective April 29 the 14-hour call-out provisions of the contract would be administered in accordance with paragraph 18 of the contract.24 The Union filed an unfair labor practice charge with the Board on April 26, 1973. At the hearing, the General Counsel undertook to introduce, over Respondent's timely objection, evidence regarding the description of work by supervisors on a dual call-out situation. Respondent's objection to the evidence on this point was that it was not alleged in the complaint. I expressed the view on the record that the matter was not alleged in the complaint. The General Counsel responded that the evidence involved callouts and whether employees would be "paid 14 hours for a call-out" in a dual callout or whether the Company had unilaterally changed the call- out pay standard. At the hearing I stated that I would overrule Respondent's objection pending my further consideration of the matter but that by permitting the evidence regarding dual callouts I was not necessarily indicating my ultimate ruling on the matter of whether dual callouts were properly an issue within the scope of the complaint. Accordingly, the matter was litigated by the parties. The evidence on the foregoing dual call-outs matter is that on April 29, 1973, a crew of men was "called-out," and apparently the supervisor who made the callout told the men at the time of the callout that they were to remove a "sticker" on a particular coke oven.25 While working on the oven, the men were told that when they finished they were to remove a sticker from another oven. The men telephoned Phelps from the plant at I a.m. about the matter. Phelps called the superintendent; the latter then called the foreman at the plant to ascertain the facts and then called back to Phelps. The superintendent told Phelps that he had instructed the foreman to release the men when they completed work on the first oven but thereafter when men were called out in a similar situation they would be initially told that the job was to remove oven stickers without specifying a particular oven. The crux of the foregoing dispute and similar disputes is a 1964 understanding contained in the supplementary agreement book. There, on a grievance at the fourth step, the Company agreed that thereafter when a supervisor called out an employee, the supervisor would describe the job "in general enough terms to include all of the work which may be anticipated." In short, before 1964 and thereafter, including 1973, there were differences of opinion between the Union and 23 McCreary also sent Phelps a copy of a memorandum, dated April 24, 1973, from McCreary to top company supervisors regarding the import of the arbitrator's decision. 24 The paragraph, as we have seen, provided 14-hour call-out pay on a callout on the employee's scheduled day off. The Company was and is currently paying callouts as required by the foregoing. 25 Evidently a "sticker" is a not uncommon encrustation or some foreign body or development that requires removal from the oven to insure the the Company on situations which I shall undertake to illustrate. Assume an employee is called out and is told that the job is the removal of stickers on number 1 oven; later, as he finishes this job he is assigned to remove stickers on number 2 oven. Apparently both the Union and the Company would agree that because of the original specification of number 1 oven at the time of the callout, the employee will be paid for two callouts. In other words, if there is a 14-hour pay for a callout he receives two such premium payments even though he may have worked only 4 hours on one oven and 3 hours on the second. Assume the same situation as the foregoing, except that, originally, when the employee was called out, he was told that the job was the removal of oven stickers. It is foreseeable that the Union position would or might be that the description of the work did not comply with the 1964 supplemental agreement and the employee had had a dual callout when he is assigned to work on not one but two ovens. The Company's view is that it has complied with the supple- mentary agreement and therefore there was only one callout. It requires little imagination to see that on the foregoing situation and in similar situations,26 the Compa- ny will initially describe a call-out job in more general terms than the Union may believe or contend is proper or as, in its view, is required by the Supplemental Agreement. It is my opinion that the dual call-out matter is a distinct situation not alleged in the complaint. The latter, in view of its particularity, does not allege the dual call-out situation but confines itself to the discontinuance of call-out pay on a day when the employee is otherwise scheduled to work. I therefore reverse my conditional overruling of Respon- dent's timely objection to the dual call-out evidence and sustain the objection. I do not agree with the General Counsel's contention that since the dual call-out matter was litigated, it is therefore properly before me. Respondent made timely objection and the sole reason the matter was litigated was because I overruled the objection, albeit with a qualifica- tion. While Respondent could have thereafter refrained from litigating the matter, prudence indicated, in view of my expressed desire to consider the evidence in order to evaluate the General Counsel's contention that dual callouts were part and parcel of the complaint allegations, that Respondent litigate the matter. The General Counsel's contention, that the litigation of the matter has placed dual callouts in the same posture as other matters alleged in the complaint, is not persuasive.27 In any event, although the dual callout was not the subject of an arbitration hearing and decision and it therefore is not a Spielberg situation,28 the dual callout has been and is the subject of contractual grievances filed in August 1973, and thereafter, which apparently are pending. oven's proper functioning. 26 The dual call-out matter is obviously not one that arises only on coke ovens but can arise on a wide variety of jobs. 27 See, for instance, Pacific Southwest Airlines, 201 NLRB 647, where conduct not alleged in the complaint was litigated without objection to its receipt by Respondent and was therefore adjudicated since it closely related to matters set forth in the complaint. 28 Spielberg Manufacturing Co., 112 NLRB 1080, 1082. GRANITE CITY STEEL COMPANY 887 It is therefore my opinion that the Collyer principle is applicable.29 Other Complaint Allegations With respect to the complaint allegations that Respon- dent had unilaterally discontinued payments for overtime for work performed after a shift change when the employee had not worked a full 8 hours on the prior shift; and that Respondent had unilaterally withheld meal tickets from employees when employees have been paid in excess of straight time for the prior shift or where they have worked less than 8 hours on the prior shift ; all contrary to past practice, the General Counsel adduced the testimony of employees Martin, Whitehead, Sabo, Kee, and Dix. As illustrative of the situation involved in the foregoing allegations, I shall describe the Martin matter. A grievance was filed regarding Martin and four other ironworkers and a welder in June 1973. In May 1973, they had worked their normal shift, 8 a.m. to 4:30 p.m. They were asked to work overtime and they worked from 4:30 p.m. to 12, plus about 10 minutes past 12. They were paid straight time, 8-4:30; time and a half 4:30-12; plus time and a half for the short period after 12 which came to or was equivalent to three quarters of an hours pay. The grievance was that an additional 2 1/4 hours pay was owed to the employees involved in accordance with past practice and paragraph 33 of the contract. The assertion regarding past practice is correct. The Company's position is that the men were correctly paid time and a half 4:30-12:30 and since this was a full 8-hour shift, paragraph 33 of the contract did not apply. The Union's position in the grievance and at the hearing is that the employees should have received 2 hours' pay at time and a half, plus a $1 .40 meal ticket, i.e., 3 hours pay, plus a $1 .40 meal ticket. Paragraph 15 of the contract provides that "... all time in excess of eight (8) hours in any day shall be paid for at the rate of time and one-half...: . Paragraph 33 and 33.1 provide: When less than two _(2) hours of overtime is worked at the end of a shift, the employee will receive two (2) hours at the overtime rate of pay. Meal allowance of $1.40 will be paid in lieu of lunch period. The Company agrees that employees will, after two (2) hours of overtime following the completion of an eight (8) hour shift be entitled to a $1.40 meal ticket... . I shall describe one other illustrative example. In April 1973, employee Whitehead was on his scheduled day off. About 8:30 p.m. he was called out to work on the 3-11 p.m. shift. He clocked in at 9:08 p.m. and worked to 11:36 p.m. He was paid 14 hours call-out pay, plus a half hour's 3e Collyer Insulated Wire, 192 NLRB 837. 30 On April 9, 1973, McCreary sent Phelps a copy of a memorandum that was being posted. The memorandum referred to pay practices contrary to the contract provisions , e.g., premium pay when less than 8 hours were worked "solely" because an employee worked beyond shift change. Paragraphs 15, 33, 33.1 of the contract are referred to. "Effective April 15, 1973, our payment of premium pay will be in accordance" with the above paragraphs of the contract. Phelps typed on the bottom of this document, "The statements in the above letter have not been agreed to by the Union and are considered by the Union to be in direct conflict with the agreements pay and a meal ticket. The Union's position on the Whitehead grievance is that in addition to the 14 hours call-out pay the employee was entitled to 3 hours pay (2 hours at time and a half) and a meal ticket. This was the past practice. The Company's position is that paragraph 33 does not apply simply because an employee has worked beyond the normal shift hours; but that it applies only when an employee has worked the required time to entitle him to overtime pay; and Whitehead worked only from 9:08 p.m. to 11:36 p.m.30 All these instances and matters that I have illustratively described in this section of my Decision, as the matters alleged in the complaint, are the subject of grievances that have been processed through the contract grievance procedure. The Union has appealed to arbitration. The Company on August 29, 1973, sent the Union a list of prospective arbitrators. This is the parties' traditional procedure under the contract and the Union selects an arbitrator from the aforesaid list. If none of the listed persons is satisfactory to the Union, a list of seven names is secured from the Federal Conciliation Service and one is mutually selected as arbitrator. There is neither evidence nor claim that the Company has refused to process grievances and to accept arbitration as required by the contract. Apparently on these matters referred to in this section of my Decision the Company believes that its position on the grievances is supported by the contract and supplemental agreements as interpreted by the Company. The Union evidently reads the contract differently and in the light of past practice. I express no opinion on the merits of these positions. In my opinion the Collyer3l principle applies to the allegations of the complaint described in this section of my Decision. Conclusions As I have indicated, above, it is my opinion that with respect to the matters alleged in paragraph 8A and C of the complaint, I should, and I will, defer to the grievance- arbitration procedure established by the parties in their contract.32 The matter alleged in paragraph 8B of the complaint, the discontinuance of 14-hour call-out pay on a day on which an employee is otherwise scheduled to work, is, in my opinion, governed by the Board's Spielberg doctrine 33 and by the United States Supreme Court's strong endorsement of the arbitration process as "the desirable method" of settling disputes between parties to a collective-bargaining contract over what can or cannot be done or what must be done or must not be done under their contractual agreement and relationship.34 In accordance with Spielberg requirements I am satisfied between the Company and the Union ...: . 31 Collyer Insulated Wire, 192 NLRB 837. 32 Collyer Insulated Wire, supra. 33 Spielberg Manufacturing Company, supra 34 "Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method of settling grievance disputes arising over the application or interpretation of an existing collective agreement." United Steel Workers of America v. Warrior & GulfNavigation Co., 363 U.S. 574, 578. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the instant arbitration on the 14-hour callout was "fair and regular" and "all parties had agreed to be bound." The General Counsel and the Union contend that the third Spielberg requirement has not been met and that the arbitrator's decision was "clearly repugnant to the purpos- es and policies of the Act." I have previously delineated the arbitrator's decision. It is not my function to defend or to attack the arbitrator's decision as such but simply to explicate and to understand that decision and to determine whether it is clearly repugnant to the purposes and policies of the Act. The arbitrator was fully aware of the 30-year past practice and, after initially captioning the subject of the proceeding before him as, "Subject: Past Practice-Pay- ments for Call-Outs," he referred to and recognized the 30- year practice as a fact. He recognized and described the union contention "that a practice, hoary with tradition, cannot be changed unilaterally." He made it clear and stated that he was not deciding whether the Company is at liberty to discontinue "any and all practices" not incorpo- rated in the contract and the supplemental agreements thereto. When the arbitrator stated that the past practice, which he had recognized to be a practice in the real or factual sense, was not a practice "in the commonly accepted labor relations meaning," he meant, I believe, that it was a practice that could not prevail over other factors that he proceeded to describe in paragraph 8-11 of his decision. After setting forth his reasons why the actual or factual practice could not prevail over the other factors he described, and thus, according to his phraseology, the practice was not a governing and determinative practice in the commonly accepted labor relations meaning, he stated, in effect, that a "practice" had not been created that was binding on the Company and that the Company could take unilateral action thereon. The basis for determining whether or not the arbitrator's decision is clearly repugnant to the purposes and policies of the Act is not whether the Law Judge or the Board would have rendered the same decision initially or whether the Law Judge or the Board agree with the arbitrator. The Board in Spielberg could conceivably have stated that the standard is not whether the arbitrator's decision was clearly repugnant to the purposes and policies of the Act but whether the Board agreed or disagreed with his decision or whether the Board would have rendered the same decision initially. The last-mentioned standards could have been premised on the assertion that presumptively the Board does not render decisions that are clearly repugnant to the purposes and policies of the Act, and, unless the Board agrees with an arbitrator's decision and eliminates even the possibility that the Board would have made a decision different or at variance from the arbitrator's, then it is in effect countenancing a decision that is repugnant to the purposes and policies of the Act. From the foregoing it is apparent that the "clearly repugnant . . ." standard is not a standard of agreement or disagreement or of 35 "The Federal policy of settling labor disputes by arbitration.. " United Steelworkers of America v. Enterprise W& C Corp., 363 U.S. 595, 596; "The grievance procedure is, in other words, a part of the continuous collective bargaining process." Steelworkers v. American & Gulf Navigation correctness but a standard of restraint as conveyed by the words "clearly repugnant" and is perhaps a recognition of the Supreme Court's position on the arbitration of labor disputes.35 The arbitrator's decision can be summarized as follows; the practice does not prevail because: 1) The parties have specifically bargained about call- out and have placed in the contract a call-out provision. Paying. call-outs in circumstances other than specified in the call-out provision is contrary to the express provision of the contract. 2) There is a long standing procedure whereby the parties have incorporated modifications, clarifications, or supplements to the contract in a book of Supplemen- tal Agreements and the contract refers to this book of Supplemental Agreements. There is nothing in this book about paying 14 hour call-out on a day on which an employee is otherwise scheduled to work. Argument Pro the above: The foregoing is factually correct as to the provisions of the written contract and the Supplemental Agreements. If a contract specifies and names 7 paid holidays, it excludes, as far as the terms of the written contract are concerned, an 8th paid holiday as part of the written contract and it shows that the parties have negotiated about and concluded a written agreement on paid holidays. The instant parties have negotiated on call-out pay and have placed their agreement thereon in the contract. There are written Supplemental Agreements that deal with a variety of contract matters and one such agreement (1964) deals with call-outs i.e. that the supervisor shall describe the call-out job in terms general enough to include all work anticipated. This 1964 Supplemental Agreement relates to 14 hour call- out pay, since, depending on the description of the job at the time of the call-out, the employee might be entitled to one 14 hour call-out pay or to two 14 hour call-out pays if he performed additional work not specified and described at the time of the original call- out. There is, however, no Supplemental Agreement on paying 14 hour call-out on days when an employee is otherwise scheduled to work. Argument Contra: There is no provision in the contract or in the Supplemental Agreements which states that the Company shall not or will not pay 14 hour call-out when it is on a day on which the employee is otherwise scheduled to work. Further, what is or is not in the written contract and Supplemental Agreements is immaterial and certainly not controlling in view of the 30 year past practice. The practice is the determinative factor and is a term of the contractual agreement between the parties that cannot be changed unilaterally. 3) Over a period of years in contract negotiations, the Union has sought to have the Company agree to a Co., supra at 581 ; and in the same decision a statement that the arbitrator's "source of law" is the contract and "the practices of the industry and the shop"; finally, "It is the arbitrator's construction which was bargained for ... "at 599. GRANITE CITY STEEL COMPANY 889 change in the contract provisions regarding call-outs. Typically, in the 1968 negotiations the Union proposed to apply the 14 hour call-out practice to maintenance employees; and it also sought a provision that would provide the 14 hour call out pay whether on the employee's day off or after completion of shift. The last mentioned proposal was an attempt by the Union to secure contractual status for the existing past practice. The proposal was an implicit acknowledgment of the Union's concern and of the Union's recognition that the practice lacked consensual contractual status and remained within the control of the Company; and it was implicit recognition that the contract and supple- mental agreements provided for 14 hour call-out pay only on a day when the employee was not otherwise scheduled to work. While the Company acknowledged that it was paying employees, other than maintenance employees, 14 hour call-outs whether on the employee's day off or not, it consistently refused to bind itself to do this as a matter of contract agreement. Argument Pro. No additional argument Argument Contra: The Union in making the aforementioned contract proposals was primarily inter- ested in trying to secure for the maintenance employees the 14 hour call-out that other employees enjoyed. As to the latter employees, the Union simply felt that since the practice was being followed by the Company of paying the call-out whether on a scheduled day off or not, it should be incorporated into the contract. Moreover, although the Company always rejected the proposal it acknowledged and did not deny the practice. Consequently, the history of such negotiations is immaterial and the practice remains immune to unilateral change. 4) The practice was not uniform as to all employees in the unit represented by the Union since it did not apply to maintenance employees and this is discrimina- tory and in violation of an express contract provision prohibiting discrimination as to employees on wages, conditions of employment and so forth. Argument Pro: By not applying the 14 hour call-out to maintenance employees, -the Company was confirm- ing and demonstrating that the 14 hour call-out was governed by the terms of the contract and that the practice was at all times a matter within the control of the Company. The Union over the years had sought to change this situation by proposing changes in the contract but these proposals were consistently rejected. Although there was a 14 hour call-out practice as to the non-maintenance employees, it cannot be assumed that this practice had a consensual contractual status inasmuch as it was in violation of the non-discriminato- ry provision of the same contract. Further, a discrimi- natory practice in violation of the contract is not a practice that should be entitled to preservation nor is it the kind of practice immune to change by the Company's unilateral action where the practice is at variance with the terms of the contract. Argument Contra: Uniformity or lack of uniformity in a practiceis an immaterial and irrelevant considera- tion. Moreover, the practice was uniform and non- discriminatory as to all non-maintenance employer. It is the practice as to non-maintenance employees that is in issue and this practice was immune to unilateral change. In the Spielberg case itself, the facts involved fairly typical alleged discriminatory refusals to reinstate employ- ees after a strike. An arbitration board voted 2 to 1 and "entered a written decision which merely states that the Company was justified in refusing to reinstate the four individuals." The matter was then fully litigated before a Board Trial Examiner who found and explicated why the four employees had been illegally discriminated against in violation of Section 8(axl) and (3) of the Act. The Board deferred to the arbitration award, stating "This does not mean that the Board would necessarily decide the issue of the alleged strike misconduct [the issue before the arbitrators and the Examiner] as the arbitration panel did. We do not pass upon that issue." Since the Trial Examiner's decision was directly contrary to the arbitra- tion decision, it might be inferred, if the correctness of a decision determined whether it was "clearly repugnant ," that one of the decisions was "clearly repugnant "; and, since the Board deferred to the arbitration decision, it evidently regarded that decision as not "clearly repugnant.... " Quite clearly, however, in my opinion, the Trial Examiner's decision, although directly opposite to the arbitration decision, and whether it was right or wrong, it cannot be regarded as "clearly repugnant . . ." and the Board indicated that it would not necessarily have decided the issue as did the arbitrators. If it be said that at the time of the Spielberg decision the Board did not fully understand its own deferral standards, particularly the meaning of "clearly repugnant . . .," I disagree. In Spielberg the Board had before it and cited its own Monsanto casess where it refused to defer to an arbitration award that it considered was "at odds" with the Act.37 In an even earlier case the Board had deferred to an arbitration decision even though the Board considered the decision to be wrong and would have found a violation of the Act.38 Following Spielberg, the Board has adhered to the standard that the question of whether an arbitrator's decision is clearly repugnant to the purposes and policies "is not to be determined on the basis of whether the Board would reach the same result...." 39 or whether the arbitrator's decision is "necessarily ... the one the Board would issue.."40 But where the arbitrator's decision has begged or avoided the basic issue and has ignored a long 36 Monsanto Chemical Company, 97 NLRB 517. 37 The case involved the discharge of an employee under a union- security contract clause for nonpayment of dues in months prior to the Union's certification. In Spielberg terimnology, the arbitrator's validation of the discharge, in my opinion, was quite "clearly repugnant...: . 38 Timken Roller Bearing Company, 70 NLRB 500. 39 Terminal Transport Company, Inc., 185 NLRB 672, 673. 90 Howard Electric Co., 166 NLRB 338, 341 . In International Harvester Company, 138 NLRB 923, 929, the Board deferred to the arbitrator's award "since it plainly appears to us that the award is not palpably wrong To require more of the Board would mean substituting the Board 's judgment for that of the arbitrator, thereby defeating the purposes of the Act and the common goal of national labor policy of encouraging the final adjustment of disputes, 'as part and parcel of the collective bargaining process.' " 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD line of Board and Court precedents, the Board will refuse to defer to a decision as clearly repugnant to the purposes and policies of the Act.41 However, there is no purpose or policy of the Act that a long-established practice by an employer can never be changed unilaterally no matter what the facts or circumstances in a particular case.42 One of the General Counsel's contentions is that Respondent is obligated to refrain from unilateral actions in violation of Section 8(a)(1) and (5) of the Act and Respondent should not "be allowed to arbitrate its unfair labor practices." If this is intended to indicate that there are two separate issues, ( 1) unilateral action in violation of Section 8(a)(1) and (5) of the Act; and (2) the issue of whether Respondent did act properly in taking unilateral action in the light of the factors relied upon by the arbitrator, I do not agree. Quite clearly the arbitrator did not purport to render his decision under the aegis and caption of Section 8(a)(1) and (5) of the Act and thus find or not find an unfair labor practice as such. However, it is clear that the issue before the arbitrator and passed upon by him was whether or not the Respondent could lawfully and unilaterally change the 14-hour call-out in view of the 30 year practice; the wording of the contract; the supplemental agreements; and the history of negotiations; and other relevant factors. As stated by the Board in Collyer, supra at 841-842, ". . . the arbitral interpretation of the contract will resolve both the 4' Radio Technical School, Inc., 199 NLRB 570. This case involved a Christmas bonus paid by the employer to employees for a period of years although there was nothing in the contract about a Christmas bonus. The bonus was then discontinued unilaterally . The arbitrator simply held that the bonus was a discretionary gratuity and that it could not become a contractual obligation of the employer unless set forth in the contract. Such a decision, of course, flew in the face of the many Board decisions in Christmas bonus cases and the legal principles established therein. In my opinion this Radio case is clearly distinguishable , on the facts as well as in the nature and the basis of the arbitrator's decision, from the situation in the instant case. 42 International Equipment Co., 114 NLRB 1371, 1372, 1382-84, unfair labor practice issue and the contract interpretation issue . . ." unless the arbitrator's decision fails to conform to the Spielberg standards. Moreover, the grievance-arbi- tration procedure of the contract is, in the words of the Supreme Court, "a part of the continuous collective bargaining process." 43 Nor do I believe that the Compa- ny's actions show a pattern of trying to undermine the Union. The evidence demonstrates that the Company continues to operate under the contract and to recognize the Union. The parties disagree on certain pay actions that are justified or unjustified according to the opposing views on the contract and the past practice. I shall defer to the arbitrator's decision on the complaint allegations regarding the 14-hour call-out pay since it is my opinion that the arbitral decision meets the Spielberg standards, including the requirement that the decision be not clearly repugnant to the purposes and policies of the Act. As previously stated, it is my opinion that the other complaint allegations are cognizable by the contract's grievance-arbitration procedure and in accordance with Collyer I defer to the available grievance-arbitration procedure. ORDER The complaint be, and hereby is, dismissed in its entirety.44 affirming dismissal of Section 8(a)(5) allegation as to discontinuance of bonuses and sick leave pay; Allied Manufacturing Co., 203 NLRB No. 85; Murphy Diesel Company, 179 NLRB 149. 43 Steelworkers v. Warner & Gulf Navigation Co., supra at 581. 44 On the Collyer aspect of my decision, i.e., the complaint allegation issues for which contract arbitration is available, jurisdiction is retained solely for the purpose of entertaining an appropriate and timely motion for further consideration if (1) the dispute has not, with reasonable promptness, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration ; or (2) the grievance or arbitration procedures have not been fair and regular or have reached a result which is clearly repugnant to the purposes and policies of the Act.