E. I. Du Pont & Co De Nemours & Co.

E. I. DU PONT ` & CO - 693 E. I. du Pont de Nemours & -Company and Martins- ville Nylon Employees' Council Corporation: Case 5-CA-15880 14 June 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 29 November 1984 Administrative Law Judge Harold Bernard Jr. issued the attached deci- sion . The Charging Party filed exceptions and a supporting brief, and the Respondent filed an an- swering brief. 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. collective-bargaining agreement and the Board 's deferral policy. On the basis of the entire record, including the-de- meanor of the witnesses and consideration of the briefs filed, by the General Counsel and Respondent, I make the following - FINDINGS OF FACT 'I. JURISDICTION As alleged in the complaint and admitted by Respond- ent, I find that Respondent, a Delaware corporation en- gaged, inter alia, in the manufacture of nylon yarns at its plant, in Martinsville, Virginia, where it annually receives products valued in excess of $50,000 purchased directly from suppliers located outside the Commonwealth of Virginia, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Con- cededly, the Union is a. labor organization within the meaning of Section 2(5) of the Act,' and I so find. ORDER The complaint is dismissed, provided that Jurisdiction of this proceeding is retained for the limited purpose of entertaining an appropriate and timely motion for further consideration on a proper showing that either (a) the dispute has not, _with reasonable promptness after the ' issuance of this Decision and Order, either been resolved by amica- ble settlement in the grievance procedure or sub- mitted promptly to arbitration, -or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repug- nant to the Act. ' We observe that Badger Meter. Inc, 272 NLRB 824 ( 1984), which the judge discusses, deals with the appropriateness of deferral under Spielberg Mfg Co, 112 NLRB 1080 (1955) DECISION STATEMENT OF THE CASE HAROLD BERNARD JR., Administrative Law Judge. This matter was tried in Martinsville, Virginia, on Febru- ary 21, 22, and 23, 1984. The charge in this proceeding was filed on October 27, •1983, by the Martinsville Nylon Employees' Council Corporation, alleging that Respond- ent violated Section 8(a)(5) and (1) of the National Labor Relations Act by making unilateral changes in the terms and conditions of employment, namely, implementing a so-called Doff-on-Days program. The Regional Director for Region 5 issued a complaint on December 8, 1983: Respondent's answer admits procedural and jurisdictional allegations but denies any unlawful conduct. Further- more, Respondent contends that any determination as to the propriety of its conduct should be made by, an arbi- trator pursuant to the arbitration clause of the parties' H. THE ALLEGED UNFAIR LABOR PRACTICES. A. Facts Respondent runs a nylon yarn-making plant in Mar- tinsville, Virginia. The plant employs approximately 3000 employees, the majority of whom are represented by the Union-which has been the employees' bargaining repre- sentative for over 40 years. The collective-bargaining agreement governing- the parties at the time of the hear- ing was effective from August 6, 1981, to April 30, 1983, and from year-to-year thereafter. The agreement contains several provisions, including a detailed arbitration clause relevant to this case and discussed in detail below. The Multiproducts Textile Area employs approximate- ly 550 employees whose primary task is to take the yarn produced by the spinning area, transfer it on to metal pins or paper tubes,' and draw and twist it. The textile area is divided into three sections: T8-B, T8, and T9. The instant case involves that part of T8-B known as PTY (Producer Textured Yarn) or HHW (Horizontal Helical Wind drawtwist machine). The PTY area is staffed by four groups of employees known as the A, B, C, or D shifts. These employees, like the majority of other employees in the plant, worked a schedule of rotating shifts which changed from one 7- day cycle to the next. Prior to the implementation of Doff-on-Days, the subject in dispute herein, approximate- ly 18 to 21 DWOs (Draw Wind Operators) were as- signed to each rotating- shift while one or two DWOs worked' straight days, Monday through Friday, 8 a.m. to 4 p.m. Those employees on the rotating shifts received their grade level 3 pay plus a 10-percent shift differential for each shift worked in accordance with article IV, sec- tion 4, of the contract. Straight-day employees, whose primary function was to relieve DWOs on their day of rest, received only the-grade level 3 pay. For each shift, the DWOs were divided into three teams, six DWOs per team. Four of the six DWOs would do crew work-that being the doffing function-and the remaining two DWOs would act as patrollers, make brake repairs, and 275 NLRB No. 103 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perform miscellaneous functions. The disputed-Doff-on- Days program, which was implemented on November 20, 1983, but not actually placed in effect until January 29, 1984; eliminated the doffing function from three of the shifts and confined it solely to the day shift. In order to implement the program, 32 senior qualified employees, who voluntarily bid on the positions, were awarded DWO positions on the day schedule. Eight DWOs were retained on each of the four traditional rotating shifts to perform the other functions of the DWO job-patrolling, brake repair, and miscellaneous functions DWOs on the rotating shift continued to receive their grade level 3 pay plus the 10-percent shift differential. The DWOs on the day schedule, however, received only their grade level-3 pay. There were 20 employees who became "excess" when Doff-on-Days was implemented. They have been loaned on a semipermanent basis, ai the same rate of pay, to other sections within the textile area. Neither their job titles nor their shifts have changed. - .1 Prior to implementation of the Doff-on-Days program, the parties met during 20 separate negotiating 'sessions in an attempt , to reach an agreement on the Respondent's Doff-on-Days proposal. In the course of their discus- sions, wherein there was an understanding that an extra contract accommodation for Doff-on-Days was desirable, both parties nonetheless -acknowledged that management, in order to effectuate the concept, could always "go by the contract." When Respondent implemented. the program in No- vember, the Union began filing grievances -alleging the Company had violated numerous contract provisions via implementation of Doff-on-Days. On December-20, 1983, one consolidated grievance alleging at least 10 specific contract violations was presented to, and on December 27, 1983, denied by, the plant manager. In that grievance the Union alleged violations of the following contract provisions: article I, section 4; article II, section 3; article IV, section 1, article IV, section 2, article IV, section 4(a)(b); article IV, section 4(d); article IV, section 7; arti- cle V, section '1(a)(b); article VI, section, 1; and article X, section- 3.. ' - • ` Finally, by a letter dated January 27, 1984, to the plant manager, the Union informed Respondent of its desire to enter arbitration over the subject of Doff-on-Days under article XII, sections 1, 2, and 3 of the contract. B Contentions of the Parties The General Counsel -contends that the Board should not, defer to: arbitration because the question involved whether impasse had been reached-is, a statutory' issue not susceptible ,to resolution _by the arbitrator. Secondly, she contends, that deferral is inappropriate where allega- tions of direct 'dealing are .involved since they are inde- pendent from questions of contract interpretation . i Final- ly, the General Counsel contends that the arbitral proc- ess , would; not provide; a `fully:effective remedy for the violations alleged herein. - Respondent, on the other hand, contends that the, real issue - between the parties is not whether impasse had A reference to the methods used by Respondent to enlist candidates for the Doff-on-Days concept - been reached; but whether the Company, under-the par- ties' - contract provisions, had a right to implement the Doff-on-Days concept absent argreement from the Union. In regard to the direct dealing allegations, the Company maintains that esseniially they arise from ad- ministration of the program and thus stem from and are incidental to the central'issiie of whether the Company isolated the agreement. Further, Respondent contends that the arbitrator could in fact fashion an appropriate remedy. Thus, it argues, if the Union's position were ulti- mately sustained by an_arbitrator, the Company obvious- ly would be found to have improperly implemented the Doff-on-Days concept, thus negating the need to address the impasse issue. - C. Analysis and Conclusions In.recent decisions, notably United Technologies Corp., 268 NLRB 557 (1984), and Ohn Corp., 268 NLRB 573 (1984), the Board has indicated that the deferral to arbi- tration policy expressed in Collyer Insulated Wire, 192 NLRB 837 (1971), "deserves to be resurrected and in- fused with renewed life." The Board, in United Technol- ogies, supra at 559, stated that: It is'fundamental to the concept of collective bar- gaining that the parties to a collective-bargaining agreement are bound by the terms of their contract. Where an employer and a union have voluntarily elected to create dispute resolution machinery cul- minating .in final-and binding arbitration , it is con- trary to the basic principles of the Act for the Board to jump into the fray prior to an honest at- -tempt by the. parties to resolve, their, disputes through that machinery. For dispute resolution under the grievance-arbitration process is as much a part 'of collective bargaining as the act of negotiat- ing the contract In our view, the statutory- purpose of encouraging the practice and procedure of col-- lective bargaining is ill-served by permitting the parties to ignore their agreement and to petition this Board in the first instance for remedial relief. The Board clearly indicated, however, that the deci- sion , to defer to arbitration should not be made- indis-criminately, but, rather, should be made when doing `so .would "best effectuate the purposes and policies of the Act." The Board's revived Collyer policy for deferral as stated in United Technologies provides that deferral, is ap,. propriate where- The dispute arose within the confines of a long and productive collective-bargaining relationship; there is no-claim of employer animosity to 'tlie .employ: ees' exercise of protected rights; the' parties' ;contract provides for arbitration -in a very broad range of dis- putes; the arbitration clause clearly encompasses the-dis- pute at issue, the employer has, asserted its willingness to utilize arbitration to resolve the dispute;.and the' dispute' is eminently well suited to such resolution. As Respondent-in the instant case correctly. points out, several of the above factors clearly exist here. The Union and Respondent have essentially had a productive collec- tive-bargaining relationship for over 40 years. It is undis- puted that the dispute arose within the confines of that E I DU PONT & CO. relationship. Secondly, there is no evidence or allegation of employer animosity towards the exercise of statutorily protected employee rights. The third factor, that being the presence of a broad arbitration clause, is obviously met as evidenced by article XIII, section 1, of the par- ties' contract. That section reads in pertinent part as fol- lows: Any question as to the interpretation of this Agree- ment or as to any alleged violation of any provision of this Agreement which is not otherwise settled to, the mutual satisfaction of the parties hereto, at the request of either party shall be submitted to arbitra- tion. [Jt. Exh. 1.] Finally, it is undisputed that Respondent is willing to uti- lize the arbitration process set forth in the parties' con- tract to resolve the dispute. Thus, my decision as to whether or not to defer this dispute to arbitration hinges upon whether or not the language of the contract encompasses the dispute at hand, and, if so, whether or not it is eminently well suited to resolution by arbitration. As noted, the General Counsel contends that the ques- tion involved-whether impasse has been reached-is a statutory issue not susceptible to resolution by the arbi- trator. I disagree. In the recent case of Badger Meter, Inc., 272 NLRB 824 (1984), the Board was presented with the question of whether or not it should defer to the grievance arbitration award and dismiss the com- plaint alleging that the respondent had engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. In concluding that deferral was'appropri- ate, the Board looked at several factors. At the outset, the Board determined that the contractual and statutory issues were factually parallel. There, as here, the issue was perceived differently by the respective parties. If, as Respondent urges here, the matter were presented to ar- bitration for resolution, the arbitrators would' be faced with the contractual question of whether Respondent's implementation of the Doff-on-Days program violated its collective-bargaining agreement.2 On the other hand, if the Board were to decide the case, the question, as the Acting General Counsel states, is a statutory question of whether Respondent's actions constituted unilateral' changes that violated its bargaining obligation under Sec- tion 8(a)(5). Thus, "[t]he contractual and statutory issues turn on the presence or absence of contractual authoriza- tion for the Respondent's changes. Evidence of the par- ties' collective-bargaining agreements, bargaining history, and past practice are parallel facts that shouldresolve both issues." Id. at 826. As such, I conclude that the con- tractual and statutory issues are factually parallel. Pre- 2 The General Counsel correctly points out that'Respondent made;no claim in its amended answer that the contract permitted the unilateral im--' plementation of Doff-on-Days As such, the General Counsel suggests' that Respondent's defense to the allegations of unilateral change rests solely on the statutory question of whether it had bargained to impasse and thus deferral is inappropriate I cannot abide by the General Coun- sel's narrow characterization of Respondent' s issue since other documen- tary evidence offered, including, but not limited to, the briefs and testi- monial evidence given at the hearing make it clear that Respondent did - not at any point in time intend to abandon its contractual defense 695 sumably, the arbitrators would be provided with ample documentary and testimonial evidence, as I have been, as to the above circumstances to adequately reach a deci- sion. The General Counsel nonetheless claims that deferral is inappropriate where allegations of direct dealing exist. The Regional Director, in denying Respondent's motion to defer, relied solely on Texaco, Inc., 233 NLRB 375 (1977), for support in concluding that where allegations of direct dealing are involved, deferral is inappropriate. Such reliance on Texaco is misplaced. As Respondent points out, the facts in Texaco are distinguishable from the facts here. There, the Board was faced with the alle- gation that an independent 8(a)(1) violation existed based on the respondent's act of conditioning bargaining on the employees' giving up their statutory and contractual rights to file a grievance. In short, in Texaco, the re- spondent allegedly had independently violated Section 8(a)(1) and (5) by certain conduct and statements of its supervisors and managers. Respondent here has not been charged with any independent violation of Section 8(a)(1) of the Act 3 In refusing to defer to arbitration, the Board in Texaco also took into consideration the fact that the respondent clearly did not intend to comply with the arbitration award. Thus, in Texaco, regardless of how the arbitrator might have resolved the issue, no remedial action by the respondent could have been anticipated. In short, any de- cision made by the arbitrator could not have served to "best effectuate the purposes and policies of the Act." United Technologies, supra at 11. In the instant case, however, Respondent has' indicated that it is willing to go to arbitration and that it would abide by any decision that arose from the arbitration process. Therefore, it is entirely possible. that the arbitra- tors could fashion a fully effective remedy. If, for'exam- ple, the arbitrators were to decide that Respondent vio- lated the collective-bargaining agreement by implement- ing the Doff-on-Days program without bargaining with the Union, the arbitrators could order Respondent to cease and desist from further enforcement of the, pro- gram 4 If, on the other hand, the arbitrators were. to con- clude that. Respondent, had not `violated the provisions .of the collective-bargaining agreement, the arbitrators could dismiss the matter. Either way, it is likely that the out- come before the arbitrators would resolve the central issues in this dispute. - In sum, it is 'Well-settled that where an asserted,wr'ong is remediable' in both a statutory and a contractual forum and the `facts of the case make it 1 eminently well suited for'deferral, prudence dictates that'tthe Board's processes be 'postponed to give the parties' own' dispute resolution machinery a chance to succeed. Badger Meter, " supra; United Technologies, `supra. ;Accordingly, I conclude that the issues raised by the complaint in this case should be deferred to the arbitra- 3 Though not clearly-alleged by the General Counsel, even assuming, arguendo, that Respondent herein was charged with an independent vio- lation of Sec 8(a)(1), deferral to arbitration would not be precluded under current Board law. United Technologies,: supra , - , - 4 See Combustion Engineering, 272 NLRB 215 (1984) • - , 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion provisions of the ' collective-bargaining agreement. I [Recommended Order omitted from publication.] shall so order.