Mid-American Milling Co.

926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mid-American Milling Company of Omaha, Nebras- ka and American Federation of Grain Millers, Local Union No. 50. Case 17-CA-11361 3 February 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS Upon a charge filed by the Union 13 December 1982, the General Counsel of the National Labor Relations Board issued a complaint 27 January 1983 against the Respondent alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. On 8 June 1983 the parties jointly moved the Board to transfer the proceeding to the Board, without benefit of a hearing before an administra- tive law judge, and submitted a proposed record consisting of the formal papers and the parties' stip- ulation of facts with attached exhibits. On 3 No- vember 1983 the Associate Executive Secretary, by direction of the Board, issued an order granting the motion, approving the stipulation, and transferring the proceeding to the Board. Thereafter, the Gen- eral Counsel and the Respondent filed briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in this case, the Board makes the following FINDINGS OF FACT A. Facts The Respondent and the Union were parties to a contract that expired 8 March 1981. The contract contained a grievance and arbitration procedure. The Respondent continued to abide by the wage, fringe benefit, and other provisions of the expired contract. Although by 20 July 1982 the parties had agreed to numerous provisions (including a griev- ance and arbitration procedure), they had not agreed to a new contract because they had been unable to reach mutually acceptable terms for wages and economic benefits. On 21 October 1982 an employee filed a griev- ance concerning his transfer from the day shift to the night shift. In November 1982 the Respondent and the Union met to discuss the grievance. On 17 November 1982 the Respondent denied the griev- ance. On 29 November 1982 the Union requested arbitration under the terms of the expired collec- tive-bargaining agreement. The Respondent refused to submit the grievance to arbitration. B. Contentions of the Parties The General Counsel urges that the expired con- tract's grievance and arbitration procedure sur- vived as terms and conditions of employment after the contract expired and, therefore, the Respondent must honor the arbitration provision. The Respond- ent urges the Board to decline to follow the prece- dent the General Counsel cites or, alternatively, to fmd the grievance does not involve an obligation arising under the expired contract. 1. JURISDICTION The Respondent, a corporation, is engaged in processing grain and soybeans at its Omaha, Ne- braska facility, where it annually sells goods and services valued in excess of $50,000 directly to cus- tomers located outside the State of Nebraska and annually sells goods and services valued in excess of $50,000 to customers located within the State of Nebraska who, in turn, satisfy the Board's direct jurisdictional standards. We fmd that the Respond- ent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and the Union is a labor organization within the mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICE The issue presented is whether the Respondent violated Section 8(a)(5) by refusing in December 1982 to arbitrate a grievance pursuant to an arbitra- tion provision contained in a collective-bargaining agreement that expired 8 March 1981. C. Discussion Even assuming that the arbitration provision sur- vived the expiration of the parties' contract, it is well established that the refusal to arbitrate a single grievance, even if the refusal is a contract breach, is not in itself an unfair labor practice. See GAF Corp., 265 NLRB 1361, 1364-1365 (1982), and cases cited therein. The stipulation of facts estab- lishes nothing more than a single refusal to arbi- trate a particular grievance. There is no evidence that the Respondent sought to repudiate its bar- gaining obligation; on the contrary, the Respondent continued to apply wage, fringe benefit, and other provisions of the expired contract. In sum, we conclude that, at most, the record shows that the Respondent' s single refusal to arbi- trate a particular grievance may constitute a con- tract breach. The General Counsel failed to present a prima facie case that an unfair labor practice has 282 NLRB No. 135 MID-AMERICAN MILLING CO. 927 occurred. Thus, we shall order the complaint dis- ORDER missed.' The complaint is dismissed. Given our disposition of this case , we find it unnecessary to decide whether the grievance concerned an obligation arguably created by the provision survived the contract 's expiration under Nolde Bros v Bakery expired contract or whether the parties' obligations under the arbitration Workers Local 358, 430 U S 243 (1977)