B. N. Beard Co.

B. N. BEARD COMPANY B. N. Beard Company and International Union of Operating Engineers, Local No. 478, AFL-CIO. Case I -CA- 11491 August 8, 1977 DECISION AND ORDER On April 21, 1976, the Regional Director for Region I of the National Labor Relations Board issued a complaint and notice of hearing in the above proceeding alleging that, by failing or refusing to implement its February 17, 1976, agreement with the Union to return discharged employee Lawrence Poole to its employ as of February 23, 1976, Respondent has engaged in, and is engaging in, certain unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Thereafter, on July 19, 1976, counsel for the General Counsel filed with the Board in Washington, D.C., a Motion for Summary Judgment, with exhibits attached, based on Respondent's failure to file a timely answer to the complaint as required by the Board's Rules and Regulations. On July 27, 1976, the Board issued an order transferring proceeding to the Board and Notice to Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. On September 13, 1976, Respondent filed a motion for permission to file answer, attaching thereto its answer, and an Objec- tion to Motion for Summary Judgment alleging that it had been without counsel and that it had good defenses to the complaint. The Board, having duly considered the matter, is of the opinion that the issues raised by the pleadings and the submissions of the parties would be best considered on a complete record made at the hearing before an Administrative Law Judge. If the allegations of the complaint be true, what we have before us is an agreement between Respondent and the Union to resolve an existing grievance by reemploying a discharged employee. If the settlement of this grievance were said to have been arrived at through the process of collective bargaining and if, as alleged, Respondent refused to implement this agreement, this action might be viewed as a failure to bargain under the Act to the same extent and in the same manner as a refusal to process the grievance in the first place or a failure to implement the terms of Cf. B. C. Hat'k Chevrolet, Inc., 226 NL RB 527 (1976): Pan-Abode. Inc., 222 NLRB 313 (1976). 2 N. R. B. v. C. & C. PlvwoodCorp.. 385 U.S. 421, 428 (1967). :' Sec. IO(a) of the Act provides: 'The Board is empowered . .. to prevent an' person from engaging in any unfair labor practice . affecting 231 NLRB No. 41 any collective-bargaining agreement reached during negotiations.' This does not appear to be an instance where the Board would construe "a labor agreement to deter- mine the extent of the contractual rights which were given the union by the employer." 2 For it is possible that the Board need not construe the terms of the agreement in order to rule upon the complaint but, instead, would be insuring that the terms of the agreement are carried out. Although our dissenting colleagues acknowledge the well-established rule that conduct which is proscribed under the Act cannot be ruled out as an unfair labor practice merely because the same conduct also constitutes a breach of contract, they would dismiss the complaint on the ground that the agreement at issue, if anything, was merely an agreement in which the parties had only contractual rights but no statutory interests. They argue that, because the Board lacks general jurisdiction over breaches of collective-bargaining agreements, this agreement should be enforced by the courts and not the Board. By their exercise in semantics, our colleagues have evaded the Board's statutory obliga- tion to rule upon alleged unfair labor practices and in so doing they have ignored basic principles of collective bargaining which the Act is designed to protect.3 If the issues here are found to involve statutory rights, it is the Board's statutory obligation to uphold them. It is therefore irrelevant that there may be remedies which are available through the "usual process of law," such as damages. The task before us would be a vindication of statutory bargaining rights which the Board, as Congress envisioned, is far better able to accomplish than the courts; bargaining representatives aggrieved by an employer's refusal to bargain will face "inordinate delays in obtaining vindication of their statutory rights" if first they are required to submit to time-consuming civil litiga- tion.4 In view of the foregoing, we shall remand the case to the Regional Director for further appropriate proceedings so that the issues raised by the complaint can be considered on a complete record made at a hearing before an Administrative Law Judge. In this regard, we shall also order that Respondent's belated answer be received, since Respondent was previously without counsel to advise it of its obligations in these proceedings, and such acceptance of Respondent's answer does not prejudice any party. commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may he established by agreement. law, or otherwise .... " N. L.R.B. v. C & C Plyvwood, supra at 429. 191 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER It is hereby ordered that the General Counsel's Motion for Summary Judgment be, and it hereby is, denied. IT IS FURTHER ORDERED that Respondent's motion for permission to file its answer be, and it hereby is, granted. IT IS ALSO FURTHER ORDERED that the instant Case I-CA-11491 be, and it hereby is, remanded to the Regional Director for further appropriate proceed- ings herein. MEMBERS PENELLO AND WALTHER, dissenting: The Board has long recognized that a breach of contract is not ipso facto an unfair labor practice. 5 However, where the breach of a collective-bargaining contract has been found to substantially infringe upon the statutory rights of the bargaining represen- tative or amounts to a substantial renunciation of basic collective-bargaining principles, the Board has found a violation of Section 8(a)(5). 6 In our judgment, the record herein does not establish conduct sufficient to justify an 8(a)(5) violation. The basis for the complaint herein lies in Respondent's failure to honor a commitment to 5 C & S Industries, Inc., 158 NLRB 454, 458 (1966); National Dairy Products Corporation. Detroit Creamerv Division, 126 NLRB 434 (1960); United Telephone Company of the West and United Utilities, Incorporated, 112 NLRB 779 (1955). 6 Papercraft Corporation, 212 NLRB 240, 241, at fn. 3 (1974): Nedco Construction Corp., 206 NLRB 150 (1973); C & C Plywood Corporation, 148 NLRB 414, enforcement denied 351 F.2d 224, revd. 385 U.S. 421 (1969). reemploy an individual who has been discharged. At no point has there been any claim that the employee was discharged for engaging in conduct protected by our Act. In the absence of such a claim, we fail to see how Respondent's failure to honor its commitment to reemploy rises to the level of a substantial infringement upon the statutory rights of the bar- gaining representative, or amounts to a substantial renunciation of basic collective-bargaining princi- ples. In failing to assume the role of policing each and every agreement made between an employer and a bargaining representative, we are merely following the admonition of Congress that "the Board should not have general jurisdiction over all alleged viola- tions of collective bargaining agreements and that such matters should be placed within the jurisdiction of the courts." 7 In our judgment, enforcement of the "agreement" herein is best left to the usual process of law and not to the Board. In these circumstances, we would find that the complaint does not allege facts sufficient to set forth a cause of action under Section 8(a)(5) and we would, accordingly, deny the Motion for Summary Judgment and dismiss the complaint.8 7 N.L.R.B. v. Cdl C Plywoo4, supra at 427 (1967). a Under our view, it would be unnecessary to pass on Respondent's motion for permission to file answer or consider its Objection to Motion for Summary Judgment. 192