Miller Compressing Co.

1020 309 NLRB No. 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Errors in the transcript have been noted and corrected. 2 All dates hereafter refer to 1990, except as indicated. Miller Compressing Co. and Local 364, Allied In- dustrial Workers of America, AFL–CIO. Case 30–CA–11025 December 16, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS OVIATT AND RAUDABAUGH On July 13, 1992, Administrative Law Judge Ber- nard Ries issued the attached decision. The Charging Party filed exceptions and a supporting brief, and the Respondent filed an answering brief and a cross-excep- tion. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and con- clusions, and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Gerald McKinney, Esq., for the General Counsel. Stanley S. Jaspan, Esq. (Foley & Lardner), of Milwaukee, Wisconsin, for the Respondent. Kenneth R. Loebel (Previant, Goldberg, Uelmen, Gratz, Mil- ler & Brueggeman, S.C.), of Milwaukee, Wisconsin, for the Charging Party. DECISION BERNARD RIES, Administrative Law Judge. This case was tried in Milwaukee, Wisconsin, on May 20, 1992. The issue presented is whether Respondent violated, and is violating, Section 8(a)(5) and (1) of the Act by stating conditions upon the processing to arbitration of certain discharge grievances filed by the Union on March 6, 1990. At the hearing, counsel for the General Counsel made an oral argument and entered in evidence a memorandum of law. On June 24, 1992, Charging Party and Respondent filed briefs. Having carefully reviewed the memorandum of law, the briefs, the entire record, and my recollection of the de- meanor of the witnesses, I make the following1 FINDINGS OF FACT The Basic Facts For an unstated period of time, the Respondent has recog- nized the Union as the collective-bargaining representative of its production and maintenance employees. The parties bar- gained to replace their 1987–1990 agreement, which expired on February 1, 1990, and when that contract expired, they continued to bargain. On February 13, 1990,2 the Respondent presented its ‘‘FINAL OFFER’’ to the Union. The final offer for the most part consisted of express additions, deletions, and modifica- tions based on the existing agreement. One of the 23 items, however, was written in summary fashion as follows: ‘‘Con- tract to be effective on date of ratification through January 31, 1993.’’ After the Respondent refused to accede to certain changes in the proposals, the Union struck on February 13. On the morning of Friday, March 2, the union membership held a meeting at which they voted to accept the final offer. William Reik, the union president, testified that after the vot- ing, the membership asked when they should return to work. Reik says that he told the members that they should clean up the strike debris which had been left in front of the plant, and he also said that they need not return to work until Mon- day, March 5, unless the Respondent asked that they return earlier. At 10:30 a.m., Reik telephoned Carol Thomas, Re- spondent’s manager of human resources, to tell her that the strike was over, the contract was ratified, and the employees would not resume work until Monday unless the Respondent desired otherwise. At the hearing, Thomas quarreled with Reik’s latter recollection; she said that after Reik told her about the end of the strike, he simply said that ‘‘if it was alright with the Company, that they would return on Mon- day.’’ Thomas said that would be ‘‘okay.’’ Although the two versions are close enough so that their variance is not of much importance, I would be inclined, in choosing between the two witnesses, to select Thomas here, given the certainty which she evinced. Around 5 p.m. on the same day, Thomas called Reik to tell him of the Company’s decision to discharge four em- ployees (whom she identified) for earlier engaging in mis- conduct during the strike. On March 6, the Union filed griev- ances over the discharges. The Respondent’s counsel undertook to put the agreed- upon contract in final form. On March 9, Reik picked up the draft from Thomas. With his bargaining committee, including Dennis Latus, the regional representative of the International Union, Reik reviewed the draft; they found three items which they considered to be errors: the omission of a paragraph ex- plicitly stating (in addition to the wage schedule table) the amount of the wage increases to be received; a change in the name of the pension fund; and a paragraph (sec. 5.06) which the committee thought (erroneously, it turned out) should have been omitted. What the committee assertedly failed to notice was that at two locations in the draft, a contract com- mencement date of March 5 was stated: in the very first line of the draft (‘‘THIS AGREEMENT, entered into this 5th day of March, 1990.’’) and in the final paragraph (‘‘shall be in full force and effect on both parties from March 5, 1990 through January 31, 1993 . . .’’). On Saturday, March 10, Reik notified Thomas about the changes desired by the Union committee, and she provided him with a corrected copy on March 12. This second draft still contained the March 5 references, and, in addition, as asked for by the Union, a descriptive paragraph relating to the wage increases, which began, ‘‘Each employee on the payroll as of March 5, 1990 shall receive.’’ After again going ‘‘through the whole’’ draft, the committee realized that it had erred in re- questing the omission of section 5.06 and that it should be 1021 MILLER COMPRESSING CO. included. Reik communicated this mistake to Thomas on March 13, and the change was corrected. Representatives of the parties gathered to sign the agree- ment on March 14. The Union’s chief representative, Dennis Latus, was present. Latus, who had previously seen the agreement in typed form on March 9, testified that it was not until March 14, when he first noticed the March 5 com- mencement date on the newly added wage paragraph, that he inquired about the contract being dated March 5 instead of March 2, the ratification date. Both Reik and Latus testified that Respondent’s attorney, Jaspan, indicated that it made no difference whether the agreement was dated March 2 or March 5. Latus replied that it could make a difference for employees who had worked over the weekend. After being assured that there were no such employees, and that no em- ployee would be ‘‘adversely affected’’ by the March 5 date, Latus and the committee signed the agreement. Respondent’s two witnesses, Thomas and Vice President Joseph Kovacich, both testified that they heard no discussion at the March 14 signing about the March 5 date on the con- tract. Thomas said there was ‘‘absolutely’’ none; Kovacich did not remember any such discussion, but could not be ‘‘positive.’’ Attorney Jaspan, who had allegedly participated in the discussion of the March 5 date (and who also rep- resented Respondent in this proceeding) did not testify. Al- though Latus and Reik were reasonably impressive witnesses, it is difficult to accept their testimony that there was a dis- cussion about the March 5 dates on the agreement. In a letter to Jaspan dated July 24 in which Latus argued the point that the contract had taken effect on March 2, prior to the four discharges, Latus mentioned seeing the March 5 contract date on March 14, but simply noted, ‘‘[A]t that time on March 14, this did not seem significant to us.’’ Certainly, if there had been a discussion with Jaspan in which the latter had concurred that the March 5 date would have no ‘‘adverse ef- fect,’’ Latus would have laid heavy stress in his letter on such a dialogue. Similarly, in Reik’s June 6 Board affidavit, the only reference he made to this subject was ‘‘I didn’t [say?] anything then of the printed March 5, 1990 effective date, as no one had been recalled before then.’’ Thomas and Kovacich testified that the March 5 contract date had been selected by Respondent in drafting the contract on the basis of the Respondent’s understanding that the Union had chosen not to return to work from the strike until that date. On March 15, a step-two grievance meeting was held to discuss the four grievances which had been filed on March 6 regarding the March 2 discharges. Vice President Kovacich took the position that the discharges were not arbitrable be- cause there was no bargaining agreement in effect on the day the discharges were made. The Respondent reiterated this stance (as well as a claim that the discharges were justified) in letters written to the Union on March 22. On March 23, Latus wrote to Kovacich, saying that the Union wished to ar- bitrate the four grievances, and he also wrote to the Federal Mediation and Conciliation Service asking that four arbitra- tion panels be named. On June 11, Latus again wrote to Kovacich, asserting that Jaspan had been uncooperative in striking the panels (the record does not indicate when the FMCS furnished the four panels). On June 18, Jaspan replied to Latus, making two points. One was that he had made sev- eral efforts to return Latus’ calls. The other was that al- though the Company was taking the position that the griev- ances were not arbitrable: The issue of whether these grievances are subject to arbitration is to be ultimately decided by the courts. If the Union wishes, Miller Compressing Company is willing to proceed to arbitration and will present the arbitrability issue to each arbitrator. However, in doing so, the Company reserves the right to contest arbitrability in a judicial forum. In a lengthy July 24 letter, Latus responded, arguing, inter alia, that the discharges were arbitrable on the merits because they were implemented after the contract became effective on March 2, and seeking Respondent’s agreement to present the merits to final and binding arbitration. Jaspan apparently did not respond to this letter, probably because of the con- current activity before the Regional Office. On May 23, the Union had filed a charge in Case 30–CA–10944, alleging that after the contract had been ratified, the Respondent had discharged the four strikers in violation of ‘‘Sections 8(a)(1) and/or (3)’’ of the Act. On July 2, the Region dismissed the charge on the merits. There were further proceedings in that case which need not be detailed here; on appeal, the Re- gion’s dismissal was upheld. On July 26, the Union filed an- other charge, including, as a violation of Section 8(a)(5), that the Respondent’s refusal to submit to arbitration on the mer- its of the discharges constituted breaches of its bargaining obligations under both the 1987–1990 agreement and the ‘‘agreement that was ratified March 2, 1990.’’ In a complaint and an amendment thereto issued on, re- spectively, April 8 and October 11, 1991, the Region alleged that by insisting on its ‘‘right to arbitrate the procedural arbitrability of [the] grievances, subject to its right to appeal an adverse arbitrability decision to the federal courts,’’ Re- spondent has ‘‘repudiated and modified the grievance-arbitra- tion provisions of the collective-bargaining agreement ratified on March 2, 1991.’’ In its answers to the complaint and amended complaint, Respondent stated, in part, that it has ‘‘consistently indicated that with respect to the four griev- ances, it would arbitrate the issue of arbitrability and, if nec- essary after the arbitrator’s ruling on arbitrability, the merits, [reserving] its right to contest the arbitrator’s ruling as to arbitrability in a judicial forum’’ (emphasis in original). The asserted indication of a willingness to submit the merits as well as arbitrability to arbitration was, as far as this record indicates, first expressed in a letter of August 13, 1990, from Jaspan to the Regional Director, in which such a concession was made. Discussion As demonstrated by the background of this case and the position of the General Counsel as stated at the hearing and in his legal memorandum, the issue posed by the complaint is straightforward: Did the Respondent violate the Act by im- posing conditions upon the Union’s request for arbitration? The Union’s brief raises many other contentions. It asserts that the Respondent ‘‘waived’’ its right to refuse to return the four strikers to work; it asserts that Respondent ‘‘con- doned’’ the alleged misconduct; it claims that the Respond- ent is ‘‘estopped’’ from discharging the four by the conduct of Thomas; it argues that Respondent has failed to carry its 1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD perceived burden of proving that the four employees engaged in disqualifying strike misconduct; perhaps most importantly, it contends that Respondent concocted a ‘‘bad faith’’ scheme to discharge the four and at the same time deprive them of the right to bring their discharges before an arbitrator. The Board has recently stated in Kimtruss Corp., 305 NLRB 710 (1991): ‘‘It is settled that a charging party cannot enlarge upon or change the General Counsel’s theory.’’ That statement forecloses my authority to consider on the merits any of the Union’s various theories which are not encom- passed by General Counsel’s complaint. Perhaps the theory which finds the most support in the evidence is that which charges the Respondent with acting in bad faith. However, the complete absence of any allegation of bad faith in the processing, the complaint, the trial, and the General Coun- sel’s legal memorandum precludes such an inquiry. More- over, the failure of the General Counsel to suggest such an approach may have accounted for Attorney Jaspan’s decision not to testify, and his testimony could have been critical to such an issue. I turn briefly to the question of whether, as General Coun- sel and the Charging Party argue, the collective-bargaining agreement took effect on March 2, or, as the Respondent sees it, on its stated date of March 5. I say ‘‘briefly’’ be- cause I see no need to resolve the issue in order to decide the case, as later discussed. Nonetheless, because higher au- thority might disagree with me, and because it is an interest- ing question, it seems to be worth considering. General Counsel makes the logical argument that because the Respondent’s ‘‘final offer’’ provided, ‘‘Contract to be ef- fective on date of ratification through January 31, 1993,’’ the acceptance voted by the membership on March 2 automati- cally put the contract into effect on that date. That was, the record shows, the understanding of the parties with respect to at least the two previous contracts; although those con- tracts were not formalized and executed for several months after the membership had ‘‘ratified’’ tentative agreements, the commencement dates of the contracts were shown as the dates upon which the ratifications occurred, and new benefits were put into effect as of those dates. The indication from the language of Respondent’s final offer and from the bar- gaining history of the parties obviously is that, under normal circumstances, the effective contract date would have been March 2. On the other hand, the previous contracts had not, as this one was, been settled in the midst of a strike; in the earlier situations, the parties had continued to negotiate and work after the contracts had expired, and the acceptances were simply made in brief interludes between working days. In this case, as earlier discussed, the Union rather clearly sent a message to Respondent that it preferred not to return to work until Monday, March 5, which might naturally commu- nicate the notion that the contract was not to become effec- tive until that date. Two items of evidence tend to support this position: one is that, although the Company was working two shifts on March 2, the Union’s early morning acceptance was plainly not accompanied by a disposition to man the sec- ond shift on March 2; the other is that, although a few bar- gaining unit members had continued to work during the strike, the Union never suggested that they were entitled to the benefits of the new agreement for work performed on March 2. While this latter omission might not be surprising, it is some indication that the Union did not truly think of March 2 as the contract commencement date. There does not seem to be much question that both parties believed that the bargaining committee was authorized to ad- just the initial date of the contract, for that in fact is exactly what occurred: although the agreed-to final offer provided that the commencement date would be the day of acceptance, the committee felt no compunction about ignoring that date and signing a contract which (three times) contained a later initial date, a change of which the committee was aware. Thus, I infer that the committee was empowered to enter into a contract with a starting date of March 5, as it knowingly did. I see no need to further delve into the issue of the appro- priate starting date, however, for it appears to me that pre- vailing precedent favors the Respondent on the ultimate question–whether it violated the Act by agreeing at first to arbitrate only the arbitrability, and later both the arbitrability and the merits, of the four discharges, reserving the right to challenge an arbitral finding of arbitrability in a judicial forum. Four recent cases appear to be controlling here. Indiana & Michigan Electric Co., 284 NLRB 53 (1987), reaffirmed the longstanding rule that a breach of contract (such as a refusal to arbitrate a grievance) does not necessarily constitute an unfair labor practice; it is only when the breach of contract ‘‘amounts to a wholesale repudiation of the collective-bar- gaining agreement’’ that the Board will find a violation of Section 8(a)(5). Id. at 59. Although a ‘‘refusal to arbitrate . . . a particular grievance or class of grievances’’ is not vio- lative, the Board held in Indiana & Michigan that the em- ployer had committed a violation by stating a refusal to arbi- trate all grievances arising during a hiatus between contracts, since, under Nolde Bros. v. Bakery Workers Local 358, 430 U.S. 243 (1977), some grievances arising under the expired contract may be subject to arbitration. Subsequently, in Bacardi Corp., 286 NLRB 422 (1987), the Board considered, in the light of Indiana & Michigan, the following set of facts. During a contract hiatus, the em- ployer refused to arbitrate four disciplinary grievances based on conduct engaged in during the hiatus. The parties did, however, ‘‘submit to arbitration the threshold question of the arbitrability of the Bello suspension. The Respondent indi- cated that by so doing it did not intend to waive any defense, including that of nonarbitrability.’’ Ibid. The employer also evinced a willingness to present the other grievances to arbi- tration under the same strictures. The Board found no viola- tion of Section 8(a)(5): Although the Respondent clearly believed that it had no postexpiration duty to arbitrate, it was willing to test this belief with respect to any individual grievance by submitting the question of arbitrability to an arbitrator. Such conduct can hardly be characterized as a whole- sale repudiation of the postexpiration arbitration proc- ess, including the presumptive continuing duty to arbi- trate grievances ‘‘arising under the contract’’ within the meaning of Nolde and Indiana & Michigan. . . . We view submission of this threshold question of postexpiration arbitrability to an arbitrator to be entirely consistent both with the parties’ contractual commit- 1023 MILLER COMPRESSING CO. 3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. ment to arbitration and with the statutory policy encour- aging arbitration. [Id. at 423.] As in Bacardi, this Respondent notified the Union (by Jaspan’s letter of June 18, 1990) that it was ‘‘willing to pro- ceed to arbitration and will present the arbitrability issue to each arbitrator.’’ Respondent’s additional reservation of its ‘‘right to contest arbitrability in a judicial forum’’ does not detract from this display of willingness to abide by the arbi- tration provision, if it were held to apply in these cir- cumstances. The role that courts play in determining arbitrability has recently been emphasized by the Supreme Court in Litton Business Systems v. NLRB, 111 S.Ct. 2215, 2226 (1991): Whether or not a company is bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the court, and a party cannot be forced to ‘‘arbitrate the arbitrability issue.’’ [Quoting from AT&T Technologies v. Communications Workers, 475 U.S. 643, 651 (1986).] Accordingly, Respondent’s express reservation of its right to have a court pass upon the arbitrability of the grievances is not inconsistent with a willingness to honor the arbitration clause. It should be noted that, in his memorandum of law, General Counsel states,’’ [I]n contrast to the case in Bacardi, the Respondent here has never in the course of its extended contacts with the Region provided any assurances of its will- ingness to arbitrate the merits of the grievances to a final and binding resolution before an arbitrator if it did not prevail on the issue of arbitrability.’’ It may first be noted that there is nothing in Bacardi to suggest that the employer there ‘‘pro- vided any assurances of its willingness to arbitrate the merits of the grievances to a final and binding resolution’’ if it lost on arbitrability. As noted, the decision states only that the parties submitted ‘‘the threshold question of . . . arbitrability’’ to an arbitrator, with the employer indicating that ‘‘by doing so it did not intend to waive any defense, in- cluding that of nonarbitrability.’’ But in Jaspan’s August 13, 1990 letter to the Region, he agreed on behalf of the Re- spondent to proceed to arbitration and present the issue of arbitrability to the arbitrator; then, ‘‘[s]hould the arbitrator rule against the Company on the arbitrability issue, the Com- pany would allow the arbitrator in each case to proceed to rule on the merits.’’ Jaspan then went on to preserve Re- spondent’s right to contest arbitrability in a court proceeding, but, as discussed above, the exercise of that right would not constitute a repudiation of Respondent’s contractual respon- sibilities. While Respondent’s reaction to the request for arbi- tration likely caused some delay in the process, it is not delay, but rather Respondent’s assertion of its right, which the complaint challenges; that kind of delay the system must tolerate. Litton Business, supra. Finally, I take note of the decision in General Chemical Corp., 290 NLRB 76 (1988). In that case, the union, during a postexpiration strike, on September 19 agreed to accept the employer’s offer and to return to work on September 22. Thereupon, on September 19, the employer informed the union that certain employees would not be reinstated due to strike misconduct, but did not reveal the names of those em- ployees until September 22, the date which the parties later retroactively agreed would be the commencement date of the agreement. The employer, taking the rather tenuous position that the discharges were effective on September 19, refused to arbitrate these discharges, although it honored the griev- ance procedure in other respects after September 22. After citing, inter alia, the decision in Bacardi Corp., the adminis- trative law judge wrote (at 84): Respondent has refused to arbitrate the discharges because they occurred before the effective date of the contract and its grievance-arbitration provisions. Thus, assuming Respondent is incorrect whether the contract covers the discharge disputes, Respondent has not repu- diated or abrogated the grievance-arbitration procedures. Hence, the record establishes at most a breach of con- tract, but does not establish that Respondent committed an unfair labor practice. The same analysis is applicable here. Respondent has taken the position that the four employees were discharged before the contract took effect. It may or may not be wrong about that position, but even if it is wrong, its conduct has not constituted a repudiation of the arbitration clause. Here, unlike General Chemical Corp., Respondent has even agreed to submit the disputed discharges to arbitration on the merits, with a reservation of the right to resort to the judiciary; that is more than General Chemical offered to do, and it makes this case even stronger for dismissal, within the narrow framework of the complaint as earlier discussed, than the facts in that case. Accordingly, I conclude on the basis of the foregoing dis- cussion that Respondent has not violated Section 8(a)(5) as alleged in the complaint. CONCLUSIONS OF LAW 1. The Respondent, Miller Compressing Co., Milwaukee, Wisconsin, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 364, Allied Industrial Workers of America, AFL– CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not violated the Act as alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended3 ORDER The complaint in Case 30–CA–11025 is dismissed.