Southwestern Bell Telephone Co.

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southwestern Bell Telephone Company and Communi- cations Workers of America, AFL-CIO, and its Lo- cal Union No. 6222. Case 23-CA-3902 June 28, 1974 SUPPLEMENTAL DECISION AND ORDER On July 31, 1972, the National Labor Relations Board issued its Decision and Order in the above- entitled proceeding I dismissing the complaint but re- taining jurisdiction to entertain an appropriate and timely motion for further consideration upon a proper showing that (a) the dispute has not, with reasonable promptness after the issuance of the Decision, either been resolved by amicable settlement in the grievance procedures or submitted promptly to arbitration, or (b) the dispute has been duly found by the arbitrator not to be arbitrable, or (c) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act.' The Charging Party filed a petition to review the Order of the National Labor Relations Board in the United States Court of Appeals for the District of Columbia Circuit. While the Charging Party's petition was pending in the Court of Appeals, an arbitrator's award issued on July 3, 1973. The arbitrator found that the dispute was arbitrable and he ruled on the merits. On November 23, 1973, the court of appeals grant- ed the Charging Party leave to file the arbitrator's award and further ordered remand of this matter to the National Labor Relations Board for additional proceedings, contemplated by the Board's order to retain jurisdiction upon a proper showing that the grievance or arbitration procedures have not been fair and regular or have reached a result which is repug- nant to the Act. The Board, having accepted the court's remand, issued a notice to the parties requesting statements of position. The Charging Party and the Respondent each filed a statement in response. The Charging Par- ty also filed a motion for oral argument and Respond- ent filed a response to that motion.3 The Board has considered the record in light of the statements of position and has decided to dismiss the i 198 NLRB No 6 2 In accordance with our decision in Collyer Insulated Wire, 192 NLRB 837 3 The request for oral argument by the Charging Party and the qualified request for oral argument by the Respondent are hereby denied, as the statements of position adequately present the issues and positions of the parties The Respondent also contends that the Charging Party has not filed a motion upon a ground specified in the Board 's original decision Since the Board accepted remand of this case from the court of appeals , the filing of such a motion was unnecessary in these circumstances complaint in its entirety. Under the terms of the court of appeal's remand, the two issues before the Board are whether the arbi- tration procedures have been fair and regular, or whether they have reached a result which is repugnant to the Act. As to the first issue, we note that neither party has made any contention that the arbitration procedures were unfair or irregular. In view of the absence of such a contention and after a careful examination of the arbitrator's decision, we conclude that the arbitration procedures were fair and regular. With regard to the second issue, we note that the arbitrator concluded that it would be a breach of the collective-bargaining agreement for the Respondent to institute a new practice of scheduling part-time tours of duty for telephone operators in the traffic department during the daytime hours by assigning such tours of duty to part-time operators on the basis of their separate seniority, while denying such tours of duty to full-time operators with greater seniority. As of the date of the arbitration proceedings and, indeed, as of the date of this Supplemental Decision, it does not appear that Respondent has taken any action to implement its plan. The arbitrator stated that his decision was in the nature of a declaratory judgment and that "no relief is requested and none is granted." Nevertheless, the Charging Party contends to the Board that an unfair labor practice has been committed and that it has never been remedied. The Respondent asserts that the arbitrator granted all the relief that was appropriate which was an interpretation by him that the proposed staffing plan would violate existing seniority rights. It seems clear to us that the basic dispute between the parties-i.e., whether Respondent was free to in- stitute its proposed change-has been resolved ad- versely to Respondent's position by the arbitrator. There is no evidence, and indeed no assertion, that Respondent will not comply with the arbitrator's award. Under these circumstances, the dispute ap- pears to us to have been totally resolved under the parties' own machinery in a manner surely not repug- nant to the policies of our Act. We, therefore, see no need remaining for any exercise of this Board's juris- diction.' In reply to our dissenting colleagues , we believe it is inappropriate and injudicious to comment on any case which is pending before this Board for decision on remand, and therefore refrain , as we think only proper, from expressing our views in this opinion, about either the facts or the holdings of either this Board or the court of appeals in Malrite of Wisconsin, Inc, 198 NLRB No 3 To respond to the balance of the dissent, however, our dissenting col- leagues seem to us to fail to understand that the dispute here arose out of a bona fide dispute between the parties as to whether the Respondent did or did not have a right, under the contract , to institute the change in question Even though that dispute is now resolved, our colleagues seem so wed to Continued 212 NLRB No. 53 SOUTHWESTERN BELL TELEPHONE CO. In view of the foregoing, we shall dismiss the com- plaint in its entirety.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBERS FANNING and JENKINS, dissenting: This is another case in which the majority clarifies the meaning of its Collyer doctrine, particularly as it relates to the exercise of its retained jurisdiction after an arbitrator has ruled on the merits of an alleged unfair labor practice. Here it was alleged that the Employer had breached its collective-bargaining agreement with the Union by unilaterally changing a condition of employment without notification to or bargaining, with the representative of its employees. The dispute between the parties proceeded concur- rently before the Board and the courts. Under court order, the Union was enjoined from striking to protest the Employer's conduct and the Employer was en- joined from instituting its proposed plan, pending ar- bitration of the dispute. Before the Board, The Employer argued, and a majority of the Board agreed, that the Board should not decide the merits of the controversy, but defer to the arbitrator's decision, re- taining jurisdiction, however, for the purpose of re- viewing the arbitrator's decision for fairness, regularity, and nonrepugnancy to the Act. The arbi- trator has now ruled that the Employer has, indeed, breached its collective-bargaining agreement by un- dertaking unilaterally to institute part-time daylight tours of duty at its Alabama Street facility with sepa- rate seniority for part-timers to the exclusion of sen- traditional Board procedures that they apparently cannot conceive that such a dispute can be effectively resolved unless this Board's printing presses grind out the familiar order. The simple answer to the dissent is that three decades and more of experience under a Federal policy favoring collective bargaining have shown that disputes of this kind are susceptible of lasting and effective resolution through the arbitration process, as this Board long ago recognized m Spielberg. We are convinced that the dispute here has been so resolved , and see no need to add our own form of order to an already enforceable arbitration award. Giving full effect to these voluntary , contractual, dispute-settling proce- dures seems to us, as it does to the Supreme Court, to be fully consistent with statutory policy, and not, as the dissenters have repeatedly asserted, to an abdication of statutory responsibility. We note in particular the recent deci- sion in William E. Arnold Co. v. Carpenters, 417 U.S. 12 (1974), wherein the Supreme Court, in commenting on our Collyer decision, said, inter aba: The Board's position harmonizes with Congress' articulated concern that "final adjustment by a method agreed upon by the parties is .. . the desirable method for settlement of grievance disputes arising over the application of interpretation of an existing collective -bargaining agreement . 5 Spielberg Manufacturing Company, 112 NLRB 1080. 397 iority rights of full-timers. The arbitrator carefully restricted his decision to an interpretation of the par- ties' rights and obligations under their collective-bar- gaining agreement. His decision was in the nature of a "declaratory judgment." He did not order the Em- ployer to refrain from breaching its contract in the future in the same or in a like or related manner. No remedy for the contractual breach was asked, and he gave none. Acting on a remand from the Court of Appeals for the District of Columbia, the majority now concludes that the dispute has been "totally resolved" in a man- ner not repugnant to the policies of our Act, dismiss- ing the complaint in its entirety. To the Union's argument that it is left without an adequate remedy for the unfair labor practice the majority replies that there is no evidence that the Employer will not com-' ply with the arbitrator's award. The majority's dismissal of this complaint without a remedy, even after an arbitrator has ruled on the factual issues in the Union's favor, is in accord with its published policy in reviewing arbitrators' awards under the Collyer doctrine. Thus, in Malrite of Wiscon- sin, Inc., 198 NLRB No. 3, the majority dismissed the complaint where, as here, the arbitrator had ruled in the union's favor and against the employer's assign- ment of engineer-announcer duties to combination operators at its radio stations. In that case the employ- er refused to abide by the arbitrator's award. Despite the employer's refusal to accept the award, the majori- ty held that the Board under the Collyer doctrine had no obligation to provide a remedy; it was the respon- sibility of the union to seek court enforcement of the award, regardless of the expense or the employer's clear violation of this statute. We dissented on the ground, in part, that the most serious damage to the union was the loss of its prestige and bargaining pow- er, and that only the Board could order the employer to bargain in good faith under Section 8(a)(5) and 8(d) of the Act. Now that case is again before the Board, remanded because the majority had not passed on conduct by the employer never even presented to the arbitrator. The issue, so far as that union is concerned, has become moot. It no longer represents any employ- ees of the employer, who is now free to set terms and conditions of employment unilaterally. Clearly, with- out an effective remedy, promulgated and enforced through this Board, the union's victory before the arbitrator on the factual issue presented was a hollow one. We do not know whether or not collective bar- gaining would still be alive at those radio stations if the Board had issued its customary remedial order for conduct in violation of Section 8(a)(5) of the Act. We do know that following the majority's refusal to pro- vide such a remedy collective bargaining failed for 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that unit of employees. In the instant case the arbitrator's findings of fact clearly establish that this Employer in violation of Section 8(a)(5) of the Act unilaterally attempted to change a material condition of employment. The majority's refusal to provide a remedy for this unfair labor practice is another flagrant example of the abdi- cation of its statutory obligation in pursuance of a doctrine which substitutes the award of a private arbi- trator for the mandate of Section 10(c) of the Act. Whatever may be said with respect to this doctrine where the arbitrator has found , as a matter of fact, that there is no factual evidence upon which to predi- cate a violation of this Act, no such considerations are warranted where, as here, he has found to the con- trary. Then it is incumbent upon the Board, as direct- ed by Congress in Section 10(c) of the Act, to order the person found to have committed such a violation to cease and desist from engaging in such unfair labor practice and to take such other affirmative action as will effectuate the policies of this Act. Despite the fact that a charge has been filed by the Union alleging the commission of an unfair labor practice under Section 8(a)(5), despite the fact that the General Counsel has issued a complaint to that effect, despite the factual conclusions of an arbitrator that the charge and the complaint have merit, a majority of this Board now refuses even to issue an order adopting the arbitrator's findings of fact and directing the Employer to cease and desist from engaging in such conduct or related conduct or otherwise interfering with the statutory rights of its employees. With every new Collyer case it becomes clearer that that policy is not merely a means of utilizing the griev- ance arbitration machinery of the parties' contract to resolve disputes over contract interpretation, with the Board as the overseer of the entire process, but a complete abdication of the Board's responsibility in proven unfair labor practices to see to it that a respondent's conduct, here a refusal to bargain in good faith under Section 8(a)(5), ceases and does not recur in the same or similar manner. We cannot agree that this and other Collyer cases are authorized by the precedent of Spielberg, where the Board accepted an arbitrator's findings of fact and therefore concluded that the Respondent had not violated Section 8(a)(3) of the Act, dismissing the complaint for that reason. William D. Arnold Co. v. Carpenters, 417 U.S. 12 (1974), on which our colleagues rely to support their Collyer view, hardly seems pertinent. That was a Sec- tion 301 Suit rather than an unfair labor practice pro- ceeding, and in such cases we likewise think there is no objection to arbitration, and have said so in our dissents in this area. Furthermore, Arnold was ajuris- dictional dispute case, as to which deferral to an agreed-upon method of settlement is made mandato- ry by the statute. Indeed, it is this mandatory deferral procedure in such cases that helps persuade us that deferral of other types of unfair labor practice cases was not contemplated under the Act. We regard the reasoning of the Supreme Court in Alexander v. Gard- ner Denver Co., 415 U.S. 36 (1974), refusing to defer in a Title VII equal employment action, as more ana- logous and persuasive than Arnold.