Reichhold Chemicals, Inc.

1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reichhold Chemicals, Incorporated and Local Union 7-108, Oil, Chemical and Atomic Workers International Union, AFL-CIO. - Case 7-CA- 20806 - -- 19 August 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND "DENNIS On 12 January 1983 Administrative Law Judge Richard H. Beddow Jr. issued the attached' deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief. On 21 May 1984 the National Labor Relations Board issued an unpublished order remanding- the proceeding to -the judge to consider the case in light of the Board's decision- in Olin, Corp., 268 NLRB '57-3 (1984). Thereafter, on 14- September- 1984, Judge Beddow issued the attached - supple- mental decision. 'The Respondent filed exceptions and a supporting brief, and the General, Counsel filed an answering brief. . The National Labor Relations Board 'has delegat- ed its authority in this proceeding to a three- member panel. - - ' " " The Board has considered the decision, the sup- plemental decision, and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The Respondent manufactures and distributes synthetic resins and related products at its plant in Ferndale, Michigan. At all relevant times, it was party to a collective-bargaining agreement with the Union covering 186 hourly employees., - The Respondent -employed several bargaining unit employees as "chief operators" in each of its five buildings. Appendix A of the contract de- scribed the chief operator as a ; `working employ- ee" in charge of a shift or a definite operation who would issue instructions and work assignments to operators and helpers in his department and give "reasonable working assistance" to other employ- ees.l i In 1978, the-Company issued a list of "Building Chiefs" duties The building chief category included the chief operator and lab chief classifi- cations The list read as follows ' I The Building Chief will see that the work in the building goes according to schedule Shift personnel around as necessary „ -• 2 Supervise the work of the Helpers and make sure that they are doing their jobs correctly If they are pumping material from drums, check to be sure the right drums-are being pumped •' ' 3 Supervise the work of the Operators Make sure that all weights are checked and that all kettles are operated correctly 4 Samples are to be taken to the Lab Chief from finished product tanks and kettles by Operator (Except J-7 and J.9 which the Lab Chief will sample himself) ' • In early March 19822 the Respondent's oper- -ations manager Fred Trumpy asked building 103's three chief operators to convert to the newly cre- ated position of shift supervisor. Trumpy told them the Company wanted stricter control over the building's employees in order to reduce the number of major mistakes3 and that the change to supervi- sory positions would, give them- greater authority. The chief operators agreed to the, promotions. The shift supervisors were to be responsible for the same duties as the chief operators, except they were no longer permitted to give working assist- ance to bargaining unit employees.' The Respond- ent eliminated the chief operator positions in build- ing 103. - - ' ' When Trumpy notified union representatives of the change, they protested, contending the. Re- spondent improperly removed work from the bar- gaining unit., Nevertheless, the Respondent imple- mented the promotions, effective 8 March. On 11 March the Union filed a grievance," and Arbitrator Paul E. Glendon heard the case 11 June and issued a decision denying the grievance 6 August. The Union contended at the arbitration hearing. that the. Company's unilateral promotion from the bargaining unit of the three chief operators violated the -contract's recognition clause, article II, section 1, which stated that the Union is the exclusive bar- gaining agent for production employees.4 The Union argued that appendix A defined chief opera- tors as production employees and therefore their work belonged in the bargaining unit. The arbitra- tor found, however, that the shift supervisor .posi- tion was supervisory and that article II, section 1, excluded supervisors from its ambit. He relied in part on the contract's description of chief operator as a working employee who performs production work in addition to issuing instructions and assign- ments. He found that because the shift supervisor is not a working employee, he is not a chief operator, and therefore is not encompassed by the recogni- tion clause.5 5 Give reasonable working assistance to any others that are in his Department in order to facilitate their performance of duties 2 All dates are in 1982 unless otherwise indicated 3 Former Chief Operator Joseph Bartel testified that Trumpy suggest- ed some building employees had drug and alcohol problems 4 Art II. sec 1, stated as follows The Company recognizes the Union as the exclusive bargaining agent for its employees at the plant for the purpose of collective bargaining in respect to rates of pay, wages, hours and conditions of employment The term "employees" as used in this agreement shall include all hourly rated employees, production and 'maintenance, shipping and receiving, but ex- cluding officers , salaried employees, supervisory employees, chemists, clerical employees and watchmen. S The arbitrator also observed that while appendix A mandated that a chief operator be assigned to three specific locations, it did not contain a similar requirement for building 103 275 NLRB No. 203 REICHHOLD CHEMICALS The arbitrator also found that the agreement's management-rights clause,- article IX, section 1, vested "the direction of the working forces" exclu- sively in the Company and authorized-the Re- spondent to assign the "instruction and work as- signment functions" of the chief operator position to supervisory, employees.6 As the recognition clause contained no relevant restriction, he found the' contract permrfted- the - Company to. assign the work at its discretion. The arbitrator concluded that "neither the Company's failure to bargain with the Union about the work transfer nor the transfer itself violated the parties'. agreement." He specifi- cally declined to consider the statutory basis for the Union's unfair labor practice charge, finding it beyond the scope of the agreement to arbitrate. The unfair labor practice complaint alleged that the Respondent. violated Section 8(a)(5) and (1) of the Act by unilaterally changing the bargaining unit's composition without bargaining in good faith with the Union. In the judge's initial decision, he rejected the Respondent's argument that the Board should defer to the arbitrator's decision, finding it inappropriate under thef standards set forth in Spiel- berg Mfg. Co.,.112 NLRB 1080 (1955).' The judge based his conclusion on Suburban Motor Freight, 247 NLRB 146 (1980), and Propoco, Inc., 263, NLRB 136 (1982), which imposed on the party seeking Board deferral the burden of proving that the issue was litigated before the arbitrator." Ana- lyzing the unilateral change under Board law,, he found that the Respondent's conduct violated Sec- tion 8(a)(5) and (1) of the Act. We remanded the case to the judge' because in Olin Corp., 268 NLRB 573 (1984), the Board'over-' ruled Suburban Motor Freight's allocation of bur-' dens and set forth new criteria for Board deferral to arbitration awards as follows:9 - We would find that an arbitrator has adequate- ly considered the unfair labor practice'if (1), the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitra- 6 Art IX, sec 1, reads as follows The management of the works and the direction of"the working forces including the right. to hire , suspend or discharge for proper cause, or transfer, and the right to relieve employees from duty because of lack of work, or for other legitimate, reasons, is vested exclusively in the Compa- ny, provided, that this will not be used for the purposes of discrimination against any member of the Union , and if in harmony with the, provisions incorporated in this Agreement 7 In Spielberg, the Board held that it-would defer if the arb ttral pro- ceedings appear to have been fair and regular , all parties agreed to be, bound , and 'the arbitrator 's decision is n,otlclearly . repugnant to the Act's purposes and policies., In Raytheon , Co, 140; NLRB 883 (1963),. the Board added a requirement' that the arbitrator consider the unfair labor practice issue and rule on it - 8 He found the arbitrator failed to consider the Board 's policy of pro- moting stability by disavowing unilateral changes, and he concluded the decision was repugnant to the Act 9 268 NLRB at 574 - -. ., 1415 .tor was presented generally with the facts rele- vant to resolving the unfair labor practice. In this respect, differences, if any, between the contractual and statutory standards of review should be weighed by the Board as, part of its determination under the Spielberg standards of whether an award is "clearly repugnant" to the Act. And, with regard to the inquiry into the "clearly repugnant" standard we would not require an arbitrator's award to be totally consistent with Board precedent. Unless the award is "palpably wrong," i.e., unless the ar- bitrator's decision is not susceptible to an inter- pretation consistent with the Act, we will defer. Finally, we would require that the party seeking to have the Board reject deferral and consider the merits of a given case show -that the above standards for deferral have not been met. Thus, the party seeking to have the Board ignore the determination of an arbitra- tor has the burden' of affirmatively demonstrat- ing the defects in the arbitral process or award. [Footnotes omitted.) Following the remand, the judge 's supplemental decision concluded that the General Counsel met her burden of proof under Olin by showing good cause why the Board should not defer,to the arbi- trator's decision. The judge stated. that the griev- ance alleged .the Respondent breached the contract, while the unfair labor practice charge alleged the Respondent's, failure to bargain violated Section 8(a)(5) and (1) of the Act. According to the judge, the,arbitrator found only that the Respondent did not violate the collective-bargaining agreement, and the Union. did not present the arbitrator with Board precedent and argument concerning the re- fusal-to-bargain issue. Therefore, he concluded the unfair labor practice issue was not factually parallel to -the contract issue. i ° He additionally reasoned that the Board does not defer to arbitration awards involving representation, accretion, or appropriate unit issues, citing Pinkerton 's, Inc., 270 NLRB 27 (1984), and- that this case involved bargaining unit issues which closely parallel such issues . We.dis- agree with the judge's analysis and conclusions, and we find that the arbitration award meets the Board's Spielberg and Olin standards for deferral. Initially, .we differ with the judge's finding that the contractual and unfair labor practice issues are not 'factually parallel. 'The judge correctly found that the arbitration issue is one of contractual inter- 10 The judge found the issues would have been parallel if the Union had clearly, and unmistakably waived its right to bargain over the promo- tions, but that the Union did not waive this right , 1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pretation while the unfair labor practice issue is whether the Respondent failed to bargain in good faith about a mandatory subject of bargaining. These issues, however, both turn on whether the contract permitted the chief operators' promotions, and therefore they should be resolved by the same facts, i.e., the parties' collective-bargaining agree- ments, relevant bargaining history, and past prac- tice.' Thus, the issues are factually parallel. See Badger Meter, Inc., 272 NLRB 824 (1984): The record, including the. arbitrator's decision, shows that the parties presented such evidence to the arbi- trator, 'and' neither the judge nor the General Counsel cites any additional evidence needed to re- solve the statutory issue . We also find, therefore, that the parties generally presented Arbitrator Glendon with the facts relevant to the statutory issue. As no party contends the proceedings -were unfair or irregular or. that any party did not agree to be bound by the arbitrator's award, the sole re- maining issue is whether the award was repugnant to the Act. We conclude that it was not..The arbi- trator found that the contract's management-rights clause gave the-Respondent authority generally to direct its work force, and that neither the recogni- tion clause nor' any other provision restricted this right. Similar to 'the -arbitrator, the Board, if pre- sented with ,.this case de novo, would have deter- mined whether the contract authorized the Re- spondent unilaterally- to promote the, chief opera- tors from the bargaining unit to shift supervisor po- sitions. If the Board found that the contract permit- ted this action, the Board would then have found that the Respondent did not violate its statutory bargaining obligation. Whether or not the arbitra- tor's analysis fully comports with Board case law, we stated in Olin that "we would not require an ar- bitrator's award to be totally consistent with Board precedent," if the award is- susceptible to an inter- pretation consistent with the Act. The General Counsel has not met her burden of demonstrating defects in the arbitral award, and we therefore shall defer to the award and dismiss the, complaint. II , ORDER The complaint is dismissed. 'i Similar to Pinkerton 's, Inc. 270 NLRB 27 (1984), we find the issue in this case essentially involves a contract Interpretation question rather than representation , accretion , or appropriate unit issues DECISION STATEMENT OF THE CASE RICHARD H. BEDDOW JR., Administrative Law Judge. This matter was heard in Detroit, Michigan, on July 11, 1983. Subsequently, briefs - were filed by the General Counsel and Respondent. The proceeding is based on a charge filed June 16, 1982,1 by the Oil, Chemical and Atomic Workers International Union, AFL-CIO. The Regional Director's complaint, issued November 24, al- leges that Respondent Reichhold Chemicals, Incorporat- ed, of White Plains, New York, violated Section 8(a)(5) and (1) of the National Labor Relations Act by unilater- ally changing the composition of -the bargaining unit without engaging in good-faith bargaining with the Union. . Respondent filed a Motion for Summary Judgment dated January 12, 1983. By order dated March 7, 1983, the Board denied the motion, noting that factual issues exist in the proceeding which include whether the,em- ployees promoted from chief operator to shift supervisor are "supervisors" under Section 2(11) of the Act, wheth- er the 'promotions were accompanied by the transfer of bargaining unit work; and whether the-promotions had an impact on the composition of the bargaining unit. On a" review of the entire record in this case and from my observation' of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a Delaware corporation, maintains a plant engaged in the manufacture and distribution of synthetic resins and related products at Ferndale, Michigan It admits that annual production is valued in excess of $1 million with shipments valued in excess of $50,000 di- rectly to points outside Michigan, and that it is and has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also is admitted that the Union is a labor organization within the meaning of Section 2(5) of the Act II. THE ALLEGED UNFAIR LABOR PRACTICES Respondent's Ferndale plant. has approximately 186 hourly employees in the bargaining unit and, during all times pertinent, was party to a collective-bargaining agreement with the Union The plant has operated for many years,and production occurs in five separate build- ings, each with ' its own building supervisor who serves under Operations Manager Fred Trumpy, as well as a plant superintendent and a general foreman. One building supervisor is responsible for all three shifts and a second and third-shift foreman is responsible for the entire plant on those shifts. For over 30 years prior to March 8, 1982, the Company had no position of shift supervisor; however, there was a position of chief operator, a job which still exists in four buildings at the plant In the entire 'plant there are approximately 30 to 35 employees i All following dates are in 1982, unless otherwise indicated REICHHOLD CHEMICALS '1417 with the title chief operator and an equal number of lab chiefs who are paid at a similar hourly rate but who per- form substantially different duties. In early March 1982. Operations Manager Trumpy spoke with Chief Operators Clark Bailey, Joseph Bantel, and Howard Wegner at building 103 and asked if they would -agree to a conversion of their jobs to salaried status with the title of shift supervisor. Because of vari- ous problems, management had decided that proper pro- duction in building 103 required a-higher level of super- visors and the employees were told they would have the same job duties as in the past but would possess greater authority. They agreed to the change. Shortly thereafter, Trumpy was in a meeting concerning an unrelated matter with Union President Robert Messer, Internation- al Representative Larry Sartin, and the Union's bargain- ing committee. At the-close of the meeting, Trumpy said he had something else to discuss and announced that the Company had decided to convert. thethree building 103 chief operators to salaried supervisors. The Union pro- tested the decision on the ground that the Company was thereby taking away bargaining unit work; however, the Company indicated that it would go ahead and imple- ment its decision A notice to that effect dated March 5 was posted and the promotions were made effective March 8. On March 11 the Union filed a' grievance over the matter. Approximately a month later, in a conversation between Trumpy and the International representative, the Company noted that it needed more supervision to correct production problems. The Union suggested that the' Company promote two employees to be supervisors of the second and third shifts but leave three chief opera- tors jobs. The Company indicated it was cheaper, to do it the way it was planned. Trumpy, when asked why the Company had not raised the issue during the most recent contract negotiating sessions in 1981•, replied that the action had not been considered necessary at that time The issue then went to arbitration and a decision denying the grievance was issued on-August 6. The charge in the instant proceeding was filed approximately 3 weeks prior to the arbitrator's decision. Discussion An employer may not unilaterally institute changes in established terms and conditions of employment that constitute mandatory subjects of -bargaining, see Fibre- board Corp. v. NLRB; 379 US. 203 (1964). Here, the General Counsel contends that Respondent's reclassifica- tion of the position of chief.operator removed work from the bargaining unit and that it was, unilaterally and ac- complished _ without necessary , bargaining with the Union, in violation of Sections 8(a)(5) and (8)(d) of the Act. It further argues that deferral to the decision of the arbitrator would not be appropriate. Respondent admits that it unilaterally promoted Chief Operators Bailey, Bantel, and Wegner to the-position of shift supervisor but denies that it did so without bargain- ing with the Union: It also argues that it had no obliga- tions to bargain on that issue and argues further that the shift supervisors are statutory supervisors under the Act, that there was no transfer of bargaining unit work out of the bargaining unit, and that the action complained of did not have a material effect on the bargaining unit A Deferral to the Arbitrator's Decision Turning first to the issue of deferral to the arbitrator's - decision, it appears that on brief Respondent's principal arguments in this regard relates.to its contention that the processing of the grievance through arbitration satisfies any duty it had to bargain- on the issue, citing McDonnell Aircraft Corp., 109 NLRB 930 (1954), and American Cy- anamid Co., 185 NLRB 981 (1970), whereas as an initial affirmative defense, it argued deferral was necessary under the standards of Spielberg 'Mfg. Co., 112 NLRB 1980 (1955). The General Counsel, citing Propoco, Inc., 263 NLRB .136 (1982), reaffirming Suburban Motor Freight, 247 NLRB 146 (1980), argues that deferral is in- appropriate inasmuch as the arbitrator was not presented with.or did not consider the relevant statutory question. Here, the issue before- the arbitrator was posed as an alleged breach by Respondent of, the parties' contract, as contrasted with the instant charge which is an allegation of refusal to bargain arising out of Respondent 's unilater- al midterm contract modification of unit compositions and terms and conditions of employment And, as argued by the General Counsel,- the arbitrator's findings fail to consider the Board's policy of promoting stability by dis- allowing such unilateral changes or midterm modifica- tion of agreed-to terms and conditions of employment. Accordingly, I find that under all circumstances of this case the arbitrator's decision is repugnant to the purposes - and policies of the Act and therefore it would not be ap- ,propriate to defer to his decision. B. Superv isory Status Section 2(11) of the Act defines a supervisor as any individual having authority,' in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote; discharge, assign, reward; or disci- pline other employees, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or-clerical nature, but requires the use of independ- ent judgment. The- existence of any one element can be sufficient to convey supervisory status, however, sporadic or occa- sional exercise of supervisory authority is insufficient to make an employee a supervisory authority likewise can be insufficient to transform' a rank-and-file employee- into supervisor. - For over 30 years employees in the position of chief operator performed highly responsible tasks and by agreement were defined as being in charge of a shift as well as having operational duties and being members of the bargaining unit.- Principal authority rested with the building supervisor and plant second- and third-shift foreman and, in effect, the chief operators occupied posi- ' tions comparable to "leadmen " who directed routine work operations when a supervisor was absent. These employees properly were considered to be unit members '1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior to March 8; however, three of the same individuals in building 103 were given the; title of "shift supervi- sors," their pay was changed from hourly to salary, and their duties, were changed. The changes included the taking away of duties such as assisting other shift em- ployees or replacing them during break periods (this pro- duction type work formerly had taken about 1 hour each day). The shift supervisors were told they would have basically the same job duties as in the past but would have greater authority and were told to spend more time checking on employees. They began to attend manage- ment meetings and continued to perform the-supervisory type duties they previously performed, such as sending employees home, getting replacements or extra employ- ees, scheduling breaks, and delegating work assignments. Respondent argues that the specific resting of manage- ment responsibility- in the shift supervisors require'' 'them to use independent judgment and points out that it- has resulted in the correction of past problems and substan- tial improvement in plant operation Under these circum- stances, I find that although the change in functions-and duties of the foreman chief operators may not have been substantial, the specific vesting of greater authority and the use of independent judgment to direct employees are sufficient to show that the Jobs of employees Bailey, Bantel, and Wegner were changed to statutory supervi- sors within the meaning of Section 2(11) of the.Act on March 8; when they were given positions as shift super- visors. C. Duty to, Bargain Managerial rights include the right' to ' promote em- ployees to newly created supervisory positions, however, it is also established law that the elimination of jobs from an established bargaining unit affects terms and condi- tions of employment and is a mandatory' subject of col- lective' bargaining, see, Cessna Aircraft Co., 172 NLRB 696 (1968), cited' by Respondent. Respondent, however, argues that it satisfied any duty to bargain inasmuch as it notified representatives of the, Union that it proposed to promote three bargaining unit members to shift supervi- sor. As noted above, this was done. in an informal manner, at an early March meeting concerning a totally unrelated matter, and at a time only a few days -before the change was implemented. Although the Union voiced its. objection, Respondent indicated it would go ahead with its decision, it posted a notice to that effect on March --5, and the promotions. _were-. implemented on March 8. „-_ .,;Here, I find that the circumstances of Respondent's verbal, "notice" were inadequate, to, properly: notify, the Union-that changes in_the makeup of-the bargaining' unit were planned such, that a burden would. shift. to the Union to clearly and unequivocally request bargaining, Cessna, supra at 707. Also, I. find that the • Union effec- tively was precluded from going beyond its initial ob^ec-, tions by -Respondent's prompt insistence that it would implement, its decision anyway., Moreover, -the timing of both the verbal notice and the posted notice only a-few days before implementation of the change further, adds to disqualify the 'adequacy of Respondent's notice.. In any event, the Union promptly filed a grievance and it pur- sued both the contract grievance and a charge before this Board. Respondent asserts that the processing of the grievance further satisfies any duty to bargain. However, that is not.the legal equivalent of an offer to bargain, see Dura-Vent Corp., 257 NLRB.430 at 432 (1981), and therefore, Respondent's mere participation in the griev- ance procedure after its unilateral action does not satisfy its statutory duty. Furthermore, the Board will not light- ly infer waiver and requires that it be clear and unmis- fakable, see Tocco Division of Park-Ohio Industries, 257 NLRB 413 (1981). Thus, union participation in the griev- ance procedure cannot be considered as a waiver to its statutory rights, especially since the Union contempora- neously filed a charge under the Act. Finally, waiver also will'not be inferred from a contractual management- , rights clause, Weltronic Co., 172. NLRB 235 (1968), nor a so-called zipper clause under circumstances such as here, where an employer .has made unilateral changes in exist- ing working conditions, GTE Automatic Electric, 261 NLRB 1491, 1492 fn. 3 (1982). - Under these circumstances, I, therefore conclude that Respondent has a duty to bargain over the subject change and that nothing occurred that 'would relieve it of its obligation. See also Technicolor Government Serv- ices, 268 NLRB 258 (1983). - - D. The Unilateral Change and Its Impact As, shown above, three chief operators in Respondent's ,building 103 were removed from a bargaining unit con- taining approximately 30-35' such positions through the creation of the supervisory position of shift supervisor and the elimination of the chief operators position 'If this action had a significant impact on bargaining unit work, the Union had-the right to be given the op- _portunity-to bargain, as loss of unit work is a change in terms,and conditions of. employment under Section 8(d) of the Act, see Lutheran Home, 264 NLRB 525.(1982); -Dura-Vent,- supra; Central- Cartage, 236 NLRB 1232 at 1258 (1978), and Kendall College, .228 -NLRB 1083 at 1088 (1977).- Here approximately 10 percent of the chief operator's positions were removed from the bargaining unit and the -Union is faced with the-specter that management may in the future unilaterally decide to change the classification of chief operators in other buildings as well. It also is noted that, as''chief operators, employees Bailey, Bantel, and Wegner spent most of their time in supervisory type tasks directing' routine work operations. Although they now-hold additional responsibilities as statutory supervi- sors; they still 'direct routine work operations that were formerly bargaining unit work. Under these" circumstances, I find that the General Counsel has `shown that Respondent's action in unilater- ally changing the position of three chief operators to statuiory supervisors has posed a significant threat to the work of bargaining unit and, accordingly, I conclude that Respondent is shown to have violated Section 8(a)(1) and (5) of the Act, as alleged. REICHHOLD CHEMICALS 1419 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the "Act. 3. Respondent's employees in the classification' of "shift supervisor" are statutory supervisors within the meaning of Section 2(11) of the Act. 4 By unilaterally changing the classification of three bargaining unit "chief operators" to "shift supervisors" on and after March 8, 1982, without consultation and' consent of the Union, • Respondent violated Section 8(a)(5) and (1). REMEDY.'. Having found that Respondent, has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom ,and to take cer= tarn affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated the Act by unilaterally changing the terms and conditions of em- ployment of three bargaining unit employees serving as chief operators, without the consent of the Union, it will be recommended that Respondent rescind these unilater- al changes, and henceforth notify and bargain with the Union concerning any contemplated changes in- the terms and conditions of employment of'bargaining unit employees. It will also be recommended that if the Union so requests Respondent shall restore the status quo which existed at the time of its unlawful actions by rein- stating employees Clark Bailey, Joseph Bantel, and Howard Wegner to their previous classification as chief operators, by making them whole for any loss 'of bene- fits, and by reimbursing the Union for any unpaid dues occasioned by the employees' separation from the bar- gaining unit as prescribed and computed in Ogle Protec- tion Service, 183 NLRB 682 (1970), and Florida Steel Corp, 231 NLRB 651 (1977). Otherwise it does not appear that Respondent's violations are of such a perva- sive nature as to require the issuance of a broad order. [Recommended Order omitted from publication.] SUPPLEMENTAL DECISION ' STATEMENT OF THE CASE RICHARD H BEDDOW JR, Administrative Law Judge. A decision in this proceeding was issued' on January 12, 1984 On May 21, 1984, the Board' remanded the pro- ceeding to me for consideration of the issue of deferral to an arbitrator's decision in light of the Board's decision of January 19, 1984, in Olin Corp., 268 NLRB 573 (1984). The parties requested that the record be reopened for the admission into evidence of the briefs submitted to the ar- bitrator on July 1 and 2, 1982, respectively, by the Em- ployer and the Union Good cause has been 'shown in support of the request and it is granted and the noted briefs are accepted into evidence. Finally, in accordance with procedures discussed in a conference call and set forth in an appropriate order, supplemental beefs. were filed by the General Counsel and Respondent. The issue presented to the arbitrator, as stated in the union brief to the arbitrator, was: The sole issue in this matter is whether the Compa-' ny violated the Collective Bargaining Agreement and clearly defined past practice when it unilateral- ly changed the classifications, of three "103" Build- ing Chief Operators to Shift Supervisors and as- signed the duties formerly performed by bargaining unit Building Chief, operators `to the newly created non-bargaining unit positions of Shift supervisor. The arbitrator received evidence and found that the position of• chief operator existed since 1944, and that after the contested change on March 8, 1982, from chief operator to shift supervisor,, the reclassified individuals performed virtually the same duties in building 103 as those they had carried out prior to the reclassification. ,Respondent adduced evidence and the arbitrator found that the sole difference in the duties occasioned by the "promotion" was that, as "shift supervisors," the chief operators- no longer gave "working assistance to any other." - The-arbitrator found that the work of the chief opera- tors. had, for some 38 years included functions that were supervisory in nature but that once the former chief op- erators no longer lent' working assistance to employees by engaging occasionally in actual production work, they were "purely supervisory" employees who could be excluded from the unite under the authority of the con- tract's recognition clause. He found that the "fact that the instruction and work assignment functions in 103 Building were assigned to `working employees' (Chief Operators) for, 38 years.before March 8, 1982 did not ob- ligate the Company to continue such a practice, provid- ed the change in practice was not made in bad faith in an attempt to undermine or `interfere with the-organization of the Union", and he concluded that there was no breach of the contract by Respondent. The arbitrator further stated that Respondent's cited business reasons for its decision to transfer work out of the bargaining unit precluded' a finding of bad faith. He also concluded that the contractual "zipper clause" granted to Respondent the right to reclassify the chief operators. - - As noted by Respondent,-the arbitrator's decision ana-' lyzed' the contractual agreement between the Company and the Union based on consideration of Appendix A to the bargaining agreement which defined the duties of the employee involved in•'the dispute, the preface to Appen- dix A, a separate agreement between the parties made in 1978 and relied on by. the'uhioii.during the unfair labor practice hearing,.the management-clause, article .9, Sec- tion' l' of the agreement, the recognition clause, article 2, section ' 1, and past practice Finally, the arbitrator con- cluded by stating: - For the,reasons'set forth above, neither the Compa- ny's' failure to bargain with the Union about the work transfer-nor the-transfer itself violated the par- ties', agreement. Accordingly, the grievance must be denied. 1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The sole matter for consideration here is whether it should be considered necessary and appropriate in the light of the Board's decision in Olin, to defer to the arbi- trator's decision of August 6, 1982. In its Olin decision the Board reaffirmed the earlier principle set forth in Spielberg Mfg. Co., 112 NLRB 1980 (1955), that the Board will defer to an arbitral award "where the proceedings appear to have been fair and regular, ' all parties have agreed to be bound, and the de- cision of-the arbitrator is not clearly repugnant to the purpose and policies of the Act."' The Board also reaf- firmed the principle that deferral is conditioned on the arbitrator's having considered the unfair labor practice issue. However, with. respect to the' latter two elements, the -Board set forth the following test (268 NLRB 573 at 574): { We would find that an arbitrator has adequately considered the unfair labor practice if (1) the con- tractual issue is factually parallel to -the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. In this respect, differences, if any, between the contractual and statutory stand- ards of review should be weighed by the Board as part of its determination under the Spielberg stand- ards of whether an award is "clearly, repugnant" to the Act And, with regard to the inquiry into the "clearly repugnant" standard,•we would not require an arbitrator's award to be totally consistent with Board precedent. Unless the award is "palpably wrong," i.e., unless the arbitrator' s -decision is not susceptible to an interpretation consistent with the Act, we will defer. - - The Board also placed a burden on the party seeking to avoid deferral of affirmatively- demonstrating the de- fects in the arbitral process or award. In light -of this burden;, the General Counsel argues that the arbitrator's decision is palpably wrong as it incorrectly relies on a finding that the chief operators were. supervisors prior to the change and that the Company merely discontinued its practice of permitting and recognizing some duties that were bargaining unit work. It is further argued that the arbitrator's decision and reasoning is wholly contrary to precedent arising under Section- 8(a)(5) of the -Act, as it specifically relates to removal of work from a bargain- ing unit, especially insofar as the decision erroneously relied on Respondent's "zipper clause" argument. Respondent, on the other hand, contends that the con- tractual issue and the unfair- labor practice issue are iden- tical, that the arbitrator was presented with the same facts presented in the unfair labor. practice proceeding, and that therefore the arbitrator's decision on the con- tractual issue conclusively decided the statutory issue It further argues that the arbitrator's conclusion that the Company's actions were in accord with the bargaining agreement negates the claimed illegal nature of the uni- lateral'midterm contract modification-and therefore pre- cludes a finding that his decision is not susceptible to an interpretation consistent with the Act. - The proper issue before the Board is first whether an employer can make a unilateral change having an alleged significant impact on bargaining unit work and the com- position of the unit without bargaining over the change and its impact. A second issue is whether the latter ques- tion is one which can be decided as a matter of contract interpretation or whether it depends on the application of statutory policy, standards, and criteria that are not parallel ,to the former question. Here,. the grievance decided by the arbitrator alleged a breach of contract, while the unfair labor practice charge alleges that Respondent's unilateral reclassification of "chief operator" bargaining unit positions to "shift super- visors" without benefit of bargaining with the Union constitutes a modification of the provisions of the con- tract, in violation of Section 8(a)(5). of the Act. The arbi- trator in effect found that as a matter of contractual in- terpretation Respondent did not violate the parties' agreement, however, he also included gratuitous remarks relating to the bargaining obligation which reveals appar- ent inconsistencies with past interpretation of the Act. The arbitrator was not presented with Board precedent and arguments by the Union which could have been di- rected at the 'duty-to-bargain and the refusal-to-bargain issue and, accordingly, I, believe that the circumstances of the case fail to favor deferral., Under these circum- stances, I therefore conclude that the issues present are not,factually parallel, unless it otherwise is shown that the Union has clearly and unmistakably waived its rights to bargain about the issue. In the prior decision I have concluded that the Union has not waived it rights and therefore I further conclude that the General Counsel has satisfied its burden by showing that the issue at arbi- tration and the issue before the Board are not factually parallel - . At also is noted that, in the past, if the subject in ques- tion pertained to, representation, accretion, or appropriate unit, the Board consistently refused to defer See Pinker- ton's, Inc., 270 NLRB 27 (1984), which acknowledged the Olin decision and cites generally Williams Transporta- tion Co, 233 NLRB 837 (1977), and cases cited therein. Here, the question of change and impact on a bargaining unit closely parallels the other type question This is es- pecially true inasmuch as the Board, in its denial of Re- spondent's Motion for Summary Judgment, noted that factual issues exist 'in the proceeding which include whether the employees promoted from chief operators to shift supervisors are "supervisors" under Section 2(11) of the Act; whether the promotions-were accompanied by the transfer of bargaining unit work; and whether the promotions had an impact on the composition of the bar- gaining unit. - Under these circumstances, I find that the General Counsel has shown it to be appropriate to consider the issues raised in this case on their merits. Conclusions The General Counsel has met its burden of proof con- sistent with the decision in Olin Corp., 268 NLRB 573 (1984), showing ' good cause- why the Board should not defer to an arbitrator's decision in a related matter. REICHHOLD CHEMICALS Recommendation On these findings and conclusions and the entire record it is recommended that the matters involved be 1421 considered on their merits as otherwise -presented in the decision in this proceeding issued January 12, 1984, and in the subsequent exceptions and supporting brief filed by Respondent and the General Counsel's answering brief.