J & H Rainwear, Inc.

J. & H RAINWEAR 497 J & H Rainwear, Inc. and Amalgamated Ladies' Garment Cutters Union, Local 10, International Ladies' Garment Workers' Union. Case 2-CA- 17327 14 December 1984 DECISION AND ORDER BY CHAIRMAN'DOTSON AND MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 25 June 1981 .Administrative Law Judge Edwin H. Bennett issued the attached decision. The General Counsel filed exceptions and a sup- porting brief and the Respondent filed a brief op- posing exceptions. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. We agree with the judge for the reasons fully set out in the attached decision that deferral to the ar- bitration award is appropriate pursuant to the standards of Spielberg.' The Respondent's failure immediately to comply with the award is insuffi- cient reason to decline to defer. Ma/rite of Wiscon- sin, Inc., 198 NLRB 241 (1972), enfd. in relevant part 494 F.2d 1136 (D.C. Cir. 1974). The Respondent refused to allow union business agent Jack Goldberg access to its plant as required by the bargaining agreement. 2 The Respondent did not otherwise refuse to deal with Goldberg, and the Respondent did not refuse access to any other agent of the Union. The Respondent's refusal of access to Goldberg was grieved and arbitrated. The arbitrator upheld the grievance, concluding, "The Union, as well as the Employer, has the con- tractual and, indeed, the statutory right, to desig- nate its representatives for collective bargaining purposes." The arbitrator directed the Respondent to admit the Union's authorized representatives to its factory at all reasonable times. A week later Goldberg went to the plant to test the award and was not allowed to enter. Contrary to the General Counsel's argument, the Respondent's failure to comply with the award is not grounds for the Board to decline to defer. In Ma/rite, above at 241-242, the Board stated: If the Board's deference to arbitration is to be ,meaningful it must encompass the entire arbi- tration process, including the enforcement of arbitral awards [through judicial procedures]. - I Spielberg Mfg Go, 112 NLRB 1080 (1955) 2 The agreement states, "It is agreed that a representative of the Union shall have access to the shop of [the Respondent] at all reasonable times for the purpose of taking complaints and for the purpose of ascertaining whether the provisions of this agreement are being lived up to" In Electrical Workers IBEW LoCal - 715 (Maliiie) v. NLRB, above, 494 F.2d. at 1139, the court agreed: In this case, the arbitration process has foun- dered, but it has not proven inadequate. The union may yet obtain compliance with the award by means of a suit for its enforcement. As long as the remedy. of judicial enforcement is available, the force of the Spielberg doctrine is not diminished by one party's disregard for the arbitral award: We reaffirm the Ma/rite principle because it ac- cords with the Board's deferral policy as estab- lished in Spielberg and as recently confirmed in Olin Corp., 268 NLRB 573 (1984). 3 Therefore, we' shall defer to the arbitrator's award and dismiss the complaint. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. a Member 'Zimmerman adheres to the views set forth in his dissent in Olin, but agrees that in the circumstances of this case deferral is appropn- ate under Spielberg DECISION STATEMENT OF THE CASE EDWIN H. BENNETT, Administrative Law Judge. The hearing in the above-captioned matter was conducted on March 23, 1981, in New York, New York. The charge was filed on June 19, 1980, by Amalgamated Ladies' Garment Cutters Union Local 10, International Ladies' Garment Workers' Union (the Union) and the complaint thereon issued July 31, 1980, alleging, inter alia, that J & H Rainwear, Inc. (the Respondent), in violation of both Section 8(a)(5) and (1) of the Act and the applicable col- lective-bargaining agreement, refused to permit Union Business Agent Jack Goldberg access to the plant for purposes of policing the bargaining agreement. The Re- spondent admits almost all of the operative facts but denies that it committed any violations of law. On the entire record, including my observation of the demeanor of the witness (only Jack Goldberg testified), and after due consideration of oral argument and briefs filed by the parties, I make the following FINDINGS OF FACT I JURISDICTION The Respondent, a New York corporation, maintains an office and plant in the city of New York where it is engaged in the manufacture and nonretail sale and distri- bution of rainwear and related products. Annually, the Respondent sells and ships such products valued in excess of $50,000 directly to customers outside the State 273 NLRB No. 78 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of New York The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of ,Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the 'meaning of Sec- tion 2(5) of the Act. II , THE ALLEGED UNFAIR LABOR PRACTICES At least since 1968 the Union has been recognized by the Respondent as the exclusive collective-bargaining representative for a unit composed of all cutters,.mark- ers, and graders, three in number at the time of the events here in issue. The parties also have had successive collective-bargaining contracts since that year, the most recent one of which is effective by its terms for the period June 1, 1979, to May 31, 1982. That agreement provides, inter aim, "it is agreed that a representative of the Union shall have access to the shop of [the employ- er] at all reasonable times for the purpose of taking com- plaints and for the purpose of ascertaining whether the provisions of this agreement are being lived up to." In July 1978, Jack Goldberg became a union business agent, and pursuant to the contractual provision he made periodic and routine visits to the plant from that date until about November 1979 In the latter part of that month, Goldberg visited the plant as before. While there he noticed Henry Frankel, a principal officer of the Re- spondent and a brother of Jack Frankel, president, per- forming work at the cutting" table. Goldberg told the Frankels this work had to be done by a union member and rejected the explanation that the regular cutter was on vacation. Goldberg advised the Frankels they should have requested a replacement from the union At this point Henry Frankel 'angrily ordered Goldberg out of the plant. On January 8, 1980, Goldberg was present at an arbi- tration hearing involving the Respondent, at the conclu- sion of which Jack Frankel again told Goldberg never to enter his shop or "I will spit in your face.". Frankel said further he would "put a lock on the door before you can come into my shop." On March 13, 1980,, Goldberg again made a routine visit to the Respondent's premises where upon entry he met Jack Frankél. Goldberg told Frankel he was there to see the cutters to which Frankel replied that "anybody else can come here but you." On March 14, 1980,,the Union filed a grievance alleging 'that the Respondent had violated the terms of the collective- bargaining agreement set forth above by refusing to permit Goldberg access to the plant. On June 9, 1980, a hearing on that grievance was conducted before the im- partial chairman who rendered an award on June 10, 1980. In that award the arbitrator noted the Union's complaint and the Respondent's position that Goldberg was denied access because of an alleged "personality conflict," 2 but that any other business agent would be permitted to enter the shop "for the purpose specified in the agreement" The impartial chairman stated: "[T]he Union, as well as the Employer, has the contractual, and, These events are based on Goldberg's underned and credible testimo- ny 2 The reasons for such conflict do not appear in the arbitrator's deci- sion or this record indeed, the statutory right, to designate its representa- tives for collective bargaining purposes. Each party is re- quired to deal with the representative of the other party in good faith." Therefore, he rejected the Respondent's suggestion that a. pragmatic solution be reached by the Union assigning some other agent for entering the shop. The impartial chairman rendered an award on June 10, 1980, directing the Respondent "to admit to its ,factory at all reasonable times any duly authorized representative of the Union for the purpose of taking up complaints and for the purpose of ascertaining whether the terms of the collective bargaining agreement are being lived up to." On June 17, , 1980, Goldberg visited the plant to test the award and was denied entry: The instant charge was filed on June 19, 1980. The Union has not sought to en- force the arbitration award in court, although its only ex- planation for such refusal is its belief that an unfair labor practice has been committed requiring a Board Order. Both the Union and the General Counsel concede that the arbitrator considered the statutory issue, and that his award affords complete relief to the Union, and that the only additional substantive remedy forthcoming from the Board would be the posting of a notice. There is no evidence that the Respondent has refused to recognize Goldberg's representative status in any way other than the refusal to allow him to enter the plant. Nor is there evidence that the Respondent has refused to meet and bargain with Goldberg outside of its premises and apparently did so on January 8, 1980, the occasion when Jack Frankel warned Goldberg not to enter the plant, a's noted' above. It also appears the real purpose for Goldberg's-visits to this, or any other employer, is to de- termine contract compliance by speaking to employees. Thus, Goldberg testified that he looks at' the "working cards" issued to employees by the Union on which is re- corded the proper wage and checks with the employees to make certain such wage is being received He also asks employees if they have grievances or knowledge of "violations in the shop" Although it could be assumed that Goldberg might, during these visits, resolve any grievances or violations by discussion with the employer, as app'arently he attempted to do in November 1979 when he disco'vered Henry Frankel working as a cutter, this record does not clearly establish that his visitation rights accorded by the contract are for that purpose. Further, the Union at no time has sought to test the Respondent's position that anyone else but Goldberg could enter the premises to police the contract. It is con- ceded that despite the refusal to permit Goldberg access to the plant the Union has had no difficulty in meeting with unit employees and, to the extent necessary, the Re- spondent has continued to meet with the Union to dis- cuss and resolve contractual and other matters concern- ing terms and conditions of employment Finally, there is absolutely no record evidence to support the allegation made in paragraph 12(b) of the complaint that the Re- spondent denied the Union (as distinguished from Gold- berg) access to the plant on March 13, 1980 (or on any other date for that matter), "unless and until Jack Gold- berg ceased to act as the Union's designated agent for the purpose of the adjustment. of grievances.". To the J & H RAINWEAR 499 contrary, as recited above, the evidence, which inciden- tally was adduced by the General Counsel through its witness Goldberg, undeniably establishes that on that date, and at all times; access was denied only to Gold- berg and the Union was invited to send any other agent into the plant. III. DISCUSSION AND CONCLUSIONS The Respondent does not seriously dispute that, contravention of the collective-bargaining -agreement, Goldberg has been denied access to its plant. In its answer the Respondent concedes such refusal but asserts that the complaint should be dismissed on two grounds. First, the Respondent assets that such contract yiola- tion is unrelated to grievance processing or other pro- tected activity and therefore is not a statutory violation. This position is untenable for the clause on its face as- serts that "a representative of the Union shall have access to the shop . . . for the purpose of ascertaining whether the provisions of this agreement are being lived up to." Plainly, this method of assuring contract' compli- ance is closely related to every term and condition of employment bargained for and is an integral part of the grievance machinery even though the visit is not for the purpose of processing grievances directly with the Re- spondent. Therefore, the clause constitutes a mandatory subject of bargaining no less than any other term and condition of employment set forth in the agreement. Granite City Steel Co., 167 NLRB 310 (1967).3 The desirability of such procedure is not in issue. The point is that it was frozen as a term and condition of em- ployment for the duration - of the contract. By giVing a restrictive reading to the contract provision so as to ex- clude Goldberg as a union representative, the Respond- ent unilaterally modified a contractually established term and condition of employment and thus 'violated its bar- gaining obligation under the Act. See Section 8(d) of the Act; Granite City Steel Co., supra. Airport Limousine Serv- ice, 231 NLRB 922 (1977). Second, the Respondent urges deferral to the arbitra- tion award on the ground that it adequately remedies any violation and that its noncompliance is not a basis for refusing to defer. In support of this position, the Re- spondent relies on Malrite of Wisconsin, 198 NLRB 241 (1972), enfd 494 F.2d 1136 (D.C. Cir. 1974). I find merit to this argument. The General Counsel and the Union take the position that Ma/rite is not applicable on the grounds that the vio- lation alleged here involves both a contract right and a statutory right, thus rendering deferral inappropriate. This argument is erroneous for several reasons. 3 The Respondent cites no contrary authority but states that Gold. berg's visits were not to process grievances While I have found that the record is ambiguous with respect to whether or not grievance processing is a function encompassed within the purview of the contract provision, the finding of a statutory violation is not dependent on a resolution of that question Where there has been a unilateral modification of a con- tract provision relating to a mandatory (as opposed to a permissive) sub- ject of bargaining, such as is the case here, an unfair labor practice will be said to have occurred See Allied Chemicals Local 10 v Pittsburgh Glass Co , 404 U S 157, 188 (1971) It is well settled that there is no absolute right of entry onto an employer's property by nonemployees. Rather, to .bring such action within the Act's protection requires a showing of need that neither was alleged, nor litigated, nor argued here. NLRB v. Babcock -& Wilcox Co., 351 U.S. 105 (1956). Indeed, the Union concedes, and the General Counsel does not seriously dispute, that but for the contract clause, the Union would not be entitled to insist on access to the plant for purposes of policing the collective-bargaining agreement. Moreover, the evidence demonstrates that the Union was fully capable' of polic- ing the agreement subsequent to Goldberg's exclusion from the plant. Accordingly,' the Union's right under the Act to haye access to the plant, under the circumstances of this case, is dependent solely on the collective-bar- gaining agreement. - But, argues the -General Counsel, since the contract right here involved is a step in the grievance procedure, Goldberg's exclusion from the plant is akin to a "refusal to bargain with Goldberg" (G.C. Br. 7), nd consequent- ly interferes with employees' _statutory rights to select their own bargaining representative. He' further postu- lates that, when viewed in this light, the Malrite principal is inapplicable under the Board's holding in Native Tex- tiles, 246 NLRB 228 , (1918)., In that case, the employer flatly refused to meet with a particular representative for the adjudication of grievances", Onror off its premises. The union's grievance covered both the reftisal to meet with that person and the refusal to allow that individual access to its premises. As to the latter refusal, the em- ployer relied in part on certain provisions in the collec- tive-bargaining agreement. The administrative law judge recommended deferral pursuant to Collyer Insulated Wire, 192 NLRB 837 (1971), and Roy Robinson Chevrolet, 228 NLRB 828 (1977). The Board 'rejected this recom- mendation holding that. the right , of employees to desig- nate a representative of their own choosing for the proc- essing of grievances does .not turn on contract interpreta- tion but is a fundamental statutory right. The -Respondent correctly points out that the Native Textiles decision is distinguishable. Initially, as discussed above, I am unable to find that Goldberg's visits to the plant were to meet or deal with the Respondent for the processing of grievances, rather, than, routinely to deter- mine from employees if grievances existed. Even assum- ing ,arguendo that such grievance processing was one of Goldberg's functions in visiting the plant, the instant case still is factually inapposite. There is no dispute that here the Respondent only refused to. meet Goldberg in its plant, unlike the total refusal present in Native Textiles. The consequence of that limited refusal merely was to deny the Union a right gained in bargaining, i.e., plant access, and not the abrogation of a separate basic statuto- ry right. To the extent that such conduct also constitutes a unilateral modification of the contract, and therefore would violate Section 8(a)(5), the Malrite principle is di- rectly in point and controls the disposition of this case. That is so because the General Counsel's position is re- duced to a claim that, if there is a statutory violation as well as a breach of contract, the Board should not defer to an arbitration award, even one that remedies the 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD breach, where . the employer refuses to abide by that award: That position, however, was 'considered, and rejected in Malrite. In _that. case the arbitrator upheld the union's claim that the employer breached the collective-bargain- ing agreement by changing, the work assignments of the bargaining unit employees (radio engineers), requiring them to work as combination engineer-announcers.. The employer refused _to comply with the award. The Board majority dismissed the complaint (the administrative law judge had found a violation of Sec. 8(a)(5) and Sec. 8(d) of the Act premised on a unilateral modification of the bargaining agreement), holding, in relevant part that: "It appears that the- desirable objective of encouraging the voluntary settlement of labor disputes through the arbi- tration process will best be served by requiring that par- ties_ to a dispute, after electing to resort to arbitration, proceed to the usual conclusion of that process—judicial enforcement—rather than permitting them to invoke the intervention 'Of- the Board" Ma/rite of Wisconsin, 198 NLRB, 241, 242 (1972). The Board further advised par- ' ties that judicial enfordement was preferable to Board action stating': "Surely immediate access to the court is to be preferred - over this long administrative route, and this is the course we are here encouraging these and future disputants to follow," Id. at 242. Here, as in 'Ma/rite, 'the condition of employment changed by the employer was one provided for by the collective-bargaining agreement, i.e., job, duties in Mal- l:10, and plant access to a nonemployee to police the Col- lective-bargaining agreement (whether by investigation with employees, or processing grievances in direct deal- ing with the em'ployer). Thus,_ the statutory violation both cases is the unilateral midterm contract violatiOn. The union in Ma/rite, in seeking to have the court set aside the Board's 'Order, argued that the statutory issue could be resolved only by the Board The court, in af- firming the Board's deferral policy stated: "The Board -has made it Clear that,' when deferral is appropriate, the arbitration award beComes the sole' remedy for both con- tractual 'and statutory violations!: Electrical Workers IBEW Local 715 , v. NLRB,' 494 F.-2d 1136, 1138 . (D.C. Cir. 1974). - - A readirig . of the arbitration award indicates that the arbitration Proceeding here was fair and regular, the ar- biirator considered the itatutory issue, and in all respects that award complies with 'the criteria for deferral under Spielberg Mfg. Go, 142' NLRB 1080 (1955). Therefore, deferral' ordinarily would he appropriate and neither 'the GenerarCounsel nor the Union even suggest otherwise. „ -Rather, as noted, they rely nn authorities, which I have found factually inapposite, where the policy of deferral was held not applicable. 4 Bearing in mind that the Union has offered no reasonable 'explanation -for its failure to enforce the arbitrator's -award, which it candidly con- cedes affords it full relief, inasmuch as I do not find ment to the General Counsel's various arguements, and because I believe ' this case is controlled by the Board's Ma/rite principal, I recommend dismissal of the com- plaint in its entirety.5 CONCLUSIONS OF LAW '1. J & H Rainwear, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Amalgamated Ladies' Garment Cutters Union, Local 10, International Ladies' Garment Workers' Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act 3. The Respondent has not violated ' the Act in any re- spect alleged in the complaint. , On these findings of fact and conclusions of law and on the entire recOrd, I issue the following recommend- ,. , - ed 6 ORDER The complaint is dismissed in its entirety. . . 4 In addition to-the Native Textiles case, the General Counsel also relies on Electronic Reproduction Service Corp „ 213 NLRB 758 (1974) There Ma/rite was considered inapplicable_ because the employer had repudiated the entire collective-bargaining process by refusing to execute an agreed- on contract Similarly, in AMF Inc , 219 NLRB 903 (1975), the Collyer doctrine was found indefensible to a series of violations resulting in "a complete breakdown in contract renewal negotiations, rather than a rou- tine contract violation arising in the course of a bargaining relationship stabilized by an existing collective-bargaining agreement of fixed dura- tion" Id at 912 Clearly, these cases cannot reasonably be likened to the single contract violation involved in the instant matter 5 As noted above, the allegation that the Respondent _refused access tc its plant by any union representative unless Goldberg ceased acting as a union agency for the adjustment of grievances was not supported by any evidence at all, was not mentioned in the hearing, and was not argued ir the brief Indeed, it is contrary to the General Counsel's and the Union's candid and clear expression of the gravamen of the complaint I therefore Consider that allegation as having been abandoned 6 If no exceptions are filed as piovided by Sec 102 46 of the Board', Rules and Regulations, the findings, conclusions, and recommendec Order shall, as provided in Sec 102 48 of the Rules, be adopted by tilt Board and all objections to them shall be deemed waived for all pur poses