Indiana And Michigan Electric Co.

INDIANA & MICHIGAN ELECTRIC CO. 53 Indiana and Michigan Electric Company and Local Union No. 1392, International Brotherhood of Electrical Workers, AFL-CIO. Case 25-CA- 10549 29 May 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, AND STEPHENS On 30 July 1981 Administrative Law Judge Nancy M. Sherman issued the attached decision. The Respondent filed exceptions and a supporting brief. The Charging Party filed cross-exceptions, a brief in support thereof, and an answering brief to the Respondent's exceptions. The General Counsel filed a brief in support of the judge's decision. The Respondent then filed an answering brief to the Charging Party's cross-exceptions. On 16 November 1983 the Board scheduled oral argument for 6 December 1983 because this case presents important issues in the administration of the National Labor Relations Act. The Respond- ent, the General Counsel, and the Charging Party presented oral arguments on that date. The Ameri- can Federation of Labor and Congress of Industrial Organizations and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Help- ers of America also presented oral arguments as amici curiae. Following the oral argument, the Re- spondent, the General Counsel, and the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America filed sup- plemental briefs pursuant to leave granted by the Board. The Board has carefully reviewed the transcript of the oral argument. It has considered the decision and the record in light of the exceptions, briefs, and oral arguments and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. I. FACTS The Union is the collective-bargaining represent- ative of the Respondent's employees in four sepa- rate bargaining units: South Bend, Marion-Muncie, Fort Wayne, and General Office. The parties cus- tomarily negotiate a separate collective-bargaining agreement for each unit. The 1976-1978 agree- ments provided for a grievance-arbitration proce- dure consisting of four grievance steps followed by "initial arbitration" and "sole arbitration." 1 The 1 Initial arbitration under the 1976-1978 agreements consisted of a meeting between a representative of the Union and a representative of the Respondent at which the representatives attempted to agree on a res- olution of the grievance. The Union's business manager testified that the South Bend contract expired in October 1978 and the other three agreements expired in December 1978. The parties stipulated that they did not extend the expired agreements. The Union and the Respondent had not agreed on new contracts when the 1976-1978 contracts expired. They eventually negotiated new contracts, which went into effect in early November 1979. Immediately after the 1976-1978 agreements ex- pired, the Respondent sent a letter for each unit to the Union stating that the terms of the expired agreements providing for initial and sole arbitration "will not be applied for grievances filed during the time we are without an agreement." During the hiatus between the expiration dates of the 1976- 1978 agreements and the effective dates of the 1979-1981 agreements, the parties processed griev- ances through the four grievance steps established under the expired contracts. The Respondent re- fused, however, to advance nine grievances to ini- tial arbitration, stating by letter in each case that it would not "arbitrate grievances based on alleged violations of the contract which occurred during the contractual hiatus." The parties stipulated that all nine of the grievances were filed after the 1976- 1978 contracts expired and before the 1979-1981 contracts took effect, and "related to events that occurred during the contractual hiatus." The Re- spondent was apprised of the term or terms of the pertinent expired contract upon which each griev- ance was based either by the grievance itself or by the Union's representative at one of the grievance steps. All four of the expired agreements provided that "grievances which do not involve interpreta- tions or applications of a specific term or terms of this agreement shall not be arbitrable."2 difference between initial arbitration and the four grievance steps is that at initial arbitration the employee grievant and other individuals involved in the events underlying the grievance are not present The 1976-1978 agreements provided that if the two "initial arbitrators" fail to agree on a resolution of the grievance within a certain period of time, the parties shall choose a sole arbitrator to decide the dispute. The agreements fur- ther provided that the sole arbitrator shall hold a hearing and render a decision in writing which shalt be final and binding on the parties The parties omitted initial arbitration from the 1979-1981 agreements 2 The grievances concerned the following events. McCormick's sus- pension for excessive absenteeism, McCormick's suspension for improper job performance and sleeping on company time, the Respondent's failure to assign Evans overtime, giving the work to a supervisor instead; the Respondent's failure to provide Keating proper working conditions and compensation when he was assigned to a job away from his normal work location, the Respondent's request that Stone report to his new job 2 days before the date he was told he would be transferred, the Respond- ent's failure to pay Davis Line Mechanic A wages for time he spent working as a leadman, the manner in which the Respondent assigned routes to Burkhardt and other meter readers; an oral warning given to meter readers for failure to read enough meters in a day; a supervisor's acquisition of an employee's telephone number and use of It to contact her at home. 284 NLRB No. 7 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. CONTENTIONS OF THE PARTIES The question before us is whether the Respond- ent's refusal to arbitrate grievances under the ex- pired contracts constitutes a violation of the Re- spondent's duty to bargain under Section 8(a)(5) of the Act. As we explain in our analysis below, that refusal embraces two categories of conduct: (1) the Respondent's statement in its letter to the Union that it would not apply the arbitration clause of the expired agreements to any grievance filed during the time there was no contract and its failure to give individualized reasons for its refusals to arbi- trate the nine grievances filed by the Union; and (2) the Respondent's refusals to arbitrate each of those nine grievances. The amended complaint alleges that the Re- spondent modified the grievance-arbitration proce- dure in violation of Section 8(a)(5) by refusing to arbitrate grievances as required by the collective- bargaining agreements. The General Counsel argues that the Supreme Court's decision in Nolde Bros. v. Bakery Workers Local 358, 430 U.S. 243 (1977), imposes on the Respondent a contractual duty to apply the arbitration provisions of the 1976-1978 collective-bargaining agreements to the nine grievances. The Charging Party contends that the Respondent's refusal to arbitrate all grievances arising during the contractual hiatus violated Sec- tion 8(a)(5) because it constituted a general repudi- ation of the Respondent's contractual duty to arbi- trate and an unlawful unilateral change in a term or condition of employment. The Respondent argues that it is not bound to an agreement to arbitrate under Nolde because Nolde compels arbitration of postexpiration grievances only where the griev- ances concern rights accrued or vested while the contract was still in effect, and the nine grievances at issue here do not concern such rights. It also argues that the obligation to arbitrate is exclusively a creature of contract and cannot be imposed solely by operation of the Act. Finally, the General Counsel and the Charging Party contend, and the judge found, that initial arbitration is in fact a fifth step in the grievance procedure and the Respond- ent's failure to adhere to it therefore violated Sec- tion 8(a)(5) even assuming the Respondent had no contractual obligation to do so. See, e.g., Bethlehem Steel Co., 136 NLRB 1500 (1962), enfd. in pertinent part 320 F.2d 615 (3d Cir. 1963) (unilateral aban- donment of contractual grievance procedure after contract expired violated Sec. 8(a)(5)). III. ANALYSIS AND CONCLUSIONS! A. We agree with the judge's finding that initial ar- bitration is really the last step in grievance process- ing. Unlike arbitration, which is characterized by the parties' consensual surrender to an entity with the authority to issue a final and binding decision, both parties here may participate in initial arbitra- tion and still remain "free to adhere to their initial position if they remain unconvinced by the facts and arguments brought out in the course of the grievance procedure." Newspaper Printing Corp., 221 NLRB 811, 820 (1975). Accordingly, we adopt the judge's conclusion that the Respondent's aban- donment of initial arbitration was a unilateral change in the grievance procedure in violation of Section 8(a)(5). See Bethlehem Steel Co., supra. The Chairman dissents from our holding on this issue on the ground that, although an employer has a continuing duty to meet and confer with its em- ployees' collective-bargaining representative, it may—once a contract has expired—unilaterally abandon the contractually established procedures by which it had previously resolved grievances (except as to grievances that remain arbitrable under Nolde). In concluding that such procedures may be unilaterally abandoned upon contract expi- ration, he relies on dictum in Bay Area Sealers, 251 NLRB 89 (1980), enfd. as modified on other grounds 665 F.2d 970 (9th Cir. 1982), into which he evidently reads an intent sub silentio to overrule well-settled precedent. In Bay Area Sealers, the Board found that the re- spondent employer violated Section 8(a)(5) by uni- laterally changing pay and fringe benefit rates after expiration of the contract by which they were originally set. There is no indication that the Board had before it any contention concerning changes in a grievance procedure. Hence, the Board's distinc- tion (251 NLRB at 90) between "terms and condi- tions established by the contract and governing the employer-employee . . . relationship," on the one hand, and contractually established terms and con- ditions governing the "employer-union" relation- ship, on the other, is not essential to its holding in that case. Moreover, the Board's mere reference to that distinction does not make clear how the Board would classify various terms and conditions of em- 3 This opinion represents the views of Members Babson and Stephens. Member Johansen, in a concurring and dissenting opinion, jams them in finding both 8(a)(5) violations, but he dissents as to the remedy. The Chairman joins the majonty in finding the 8(a)(5) violation as to the blan- ket refusal to arbitrate, and he joins Members Babson and Stephens as to the appropriate remedy for that violation In a separate opinion he dis- sents as to the scope of the violation based on the Respondent's unilateral abandonment of the "initial arbitration" step of the grievance procedure. INDIANA & MICHIGAN ELECTRIC CO. 55 ployment. To assume that the reference to matters involving the "employer-union" relationship neces- sarily encompassed procedures for resolving em- ployee grievances is to assume that by the mere use of that phrase the Board was silently signaling an intent to overrule Bethlehem Steel Co., 136 NLRB 1500 (1962), a decision that had then been on the books for nearly 20 years. We cannot agree that such an intent would have been expressed in so in- direct and casual a manner. Indeed, a court of ap- peals has recently rejected an employer's attempt to rely on this very same "ambiguous dictum" in support of an argument that an employer may uni- laterally change hiring hall procedures after con- tract expiration. Southwestern Steel & Supply v. NLRB, 806 F.2d 1111, 1113 (D.C. Cir. 1986). The court also noted that the few recognized exceptions to the general rule that an employer must bargain over postexpiration changes in employment terms and conditions were not "rooted" in the "rule- swallowing logic" by which the employer con- strued that dictum. 806 F.2d at 1114. The few exceptions to the general rule that an employer must bargain about changes in terms and conditions of employment regardless of how those terms came to be initially established have been created for reasons that in no way support an ex- ception for allowing unilateral changes in employee grievance procedures. The exception, mentioned by the Chairman, permitting unilateral abandonment of union-security and checkoff arrangements after contract expiration is based on the fact, noted in Bethlehem Steel, that "[t]he acquisition and mainte- nance of union membership cannot be made a con- dition of employment except under a contract which conforms to the proviso to Section 8(a)(3)." This term and condition is thus inherently and solely a contractual matter, and an employer's re- fusal to enforce a union-security provision without a proper contractual basis is "in accordance with the mandate of the Act." 136 NLRB at 1502. As explained elsewhere in our opinion in this case, the other exception to which he refers—the limited ex- ception governing postexpiration arbitration—is supported by the established principle that because arbitration involves submission to a final and bind- ing decision by a third party, "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960). The policies supporting those two exceptions do not apply to procedures by which employees present their grievances to an employer. Further- more, we cannot see how the interest of preserving industrial peace is served by a rule allowing one party unilaterally to alter or abandon the procedure by which the parties have customarily resolved day-to-day worksite disputes. If either party thinks there is a good reason to alter such procedures after contract expiration, then it is free to make its suggestions to the other party and seek to resolve any differences through "the framework estab- lished by Congress as most conducive to industrial peace." Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 211 (1964). Thus, in holding, as we do, that neither party can unilaterally abandon their grievance procedures, we do not, as the Chairman asserts, "insist upon rigid adherence to an expired and truncated contractual dispute resolution system." We merely insist that changes in that dis- pute resolution system be made only after the par- ties concerned have agreed to them or otherwise adequately bargained over the matter. B. In Hilton-Davis Chemical Co., 185 NLRB 241 (1970), the Board presumed that the employer had no contractual obligation to follow the arbitration procedure after the expiration of the contract. Ac- cordingly, the Board concluded that the employer had not violated Section 8(a)(5) of the Act by re- fusing to arbitrate certain grievances arising during the contractual hiatus. The Board rested its deci- sion on "elemental considerations of the nature of the duty to bargain." 185 NLRB at 242. First, it pointed out that Section 8(d) of the Act explicitly provides that the duty to bargain does not include the obligation to agree to a proposal or to make a concession. It emphasized that the Board is em- powered to compel the parties to a bargaining rela- tionship under the Act to meet and confer and to seek agreement in good faith as to terms and condi- tions of employment, but that by enacting Section 8(d) Congress left no doubt that each party "must remain the final arbiter of its own best interest." Id. The Board then observed that the agreement of contracting parties to submit to arbitration consti- tutes a voluntary abstention from the lawful use of economic weapons to resolve disputes and a volun- tary surrender of the right of final decision re- served to the parties by Congress. The Board ac- knowledged the national policy encouraging arbi- tration embodied in Section 203(d), but concluded (185 NLRB at 242): [W]e must not be induced by that policy or its benefits to overlook that arbitration is, at bottom, a consensual surrender of the econom- ic power which the parties are otherwise free to utilize. Absent mutual consent, the parties revert to the statutory scheme of "free" collec- 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tive bargaining wherein each party must at- tempt in good faith to reach agreement, but is under no statutory mandate to reach agree- ment or to forfeit its right to utilize its eco- nomic power if no agreement can be achieved. The Board therefore concluded that during a con- tractual hiatus employers and unions must continue to meet and confer and seek agreement in good faith as to grievances arising during that period as well as to terms of the new contract, but that the duty to bargain imposed by the Act does not extend so far as to compel the parties to submit to arbitration any grievance that they are unable to resolve. After Hilton-Davis, the Supreme Court issued its decision in Nolde Bros v. Bakery Workers Local 358, 430 U.S. 243 (1977). Nolde was a suit to compel ar- bitration brought under Section 301 of the Act. The union contended that the employer was obli- gated to arbitrate its refusal to give severance pay under an expired collective-bargaining agreement to employees displaced by a plant closure. The ex- pired agreement provided that employees who had worked for the employer for at least 3 years were entitled to severance pay if permanently displaced from their jobs. The union claimed severance pay for employees who had worked for the employer for at least 3 years while the agreement was still in effect. The employer claimed that it had no obliga- tion to arbitrate because the contract containing its commitment to do so had terminated and the event giving rise to the dispute—the displacement of em- ployees on the plant's closing—occurred after the contract expired. The Court ,concluded that the dispute was arbi- trable. First, it pointed out that the resolution of the union's claim hinged on the interpretation ulti- mately given the severance pay provision of the ex- pired agreement: the parties may have intended, as the union argued, that the right to severance pay could accrue during the term of the contract and be realized after the contract expired or, as the em- ployer argued, that the event severing the employ- ment relationship must also occur during the life of the agreement for a claim of severance pay to be valid. "The dispute therefore," the Court stated, "although arising after the expiration of the collec- tive-bargaining contract, clearly arises under that contract." 430 U.S. at 249. Second, the Court ob- served that the parties had agreed in the arbitration clause of the expired contract to resolve "any grievances" and that the severance pay claim un- doubtedly would have been subject to resolution under the clause had it arisen during the contract's term. The Court then noted that in John Wiley & Sons v. Livingston, 376 U.S. 543 (1964), it had interpreted similar language in an arbitration clause to compel arbitration of a union's claim that the expired con- tract required the employer to discharge certain severance pay obligations notwithstanding the expi- ration of the agreement. "We thus determined," the Court stated, "that the parties' obligations under their arbitration clause survived contract termina- tion when the dispute was over an obligation argu- ably created by the expired agreement." 430 U.S. at 252. The Court declined to depart from this course on the record before it merely because, unlike in John Wiley, the union asserted the sever- ance pay claim after the contract expired. Finally, the Court observed that the arbitration clause was silent as to postexpiration grievances but that, absent a contrary indication, the prompt- ness and presumed expertise of the arbitrator and the well-established Federal labor policy favoring arbitration were strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract. Accord- ingly, the Court concluded that "where the dispute is over a provision of the expired agreement, the presumptions favoring arbitrability must be negated expressly or by clear implication." 430 U.S. at 255. The Court then held that on the record before it the union's claim to severance pay was subject to resolution under the arbitration clause of the ex- pired agreement. The Board has considered the application of Nolde in several cases. See Southwest Security Equipment Corp., 262 NLRB 665 (1982), enfd. 736 F.2d 1332 (9th Cir. 1984), cert. denied 105 S.Ct. 1854 (1985); Digmor Equipment Co., 261 NLRB 1175 (1982); American Sink Top Co., 242 NLRB 408 (1979); Steiner Trucraft, Inc., 237 NLRB 1079 (1978); S & W Motor Lines, 236 NLRB 938 (1978). In S & W Motor Lines, the union argued that the Board's position in Hilton-Davis was put into ques- tion by the Supreme Court's ruling in Nolde. The Board adopted the judge's conclusion that, even as- suming Hilton-Davis was no longer viable law, the arbitration provision did not survive contract expi- ration because the Nolde presumption favoring ar- bitrability of postexpiration disputes had been ne- gated by express language in the contract limiting the employer's obligation to participate in the grievance-arbitration process to the term of the agreement. In Steiner Trucraft, the Board cited Nolde for the proposition that "a contractual duty to arbitrate is not autpmatically extinguished by the termination of the contract, and the parties to such a contract continue to have the duty to process grievances and arbitrate disputes that involve rights INDIANA & MICHIGAN ELECTRIC CO. 57 or benefits which accrue or vest during the con- tract's term." 237 NLRB at 1081. In American Sink Top, by contrast, the Board ap- plied Nolde to order the employer to arbitrate, if appropriate, the discharge of an employee occur- ring 2 months after the collective-bargaining agree- ment expired. The employee had been injured and had not been on the active payroll for several months prior to his discharge. The union contend- ed that the discharge violated the expired agree- ment. The judge, although finding a violation in the employer's unilateral refusal to apply the pre- vailing grievance procedure to the postexpiration grievance, concluded under Hilton Davis that the remedy was limited to compliance with that proce- dure and did not include the obligation to arbitrate the grievance should it not be resolved. The Board, however, reasoned that under Nolde the employer was obligated to arbitrate the discharge notwith- standing the expiration of the contract because the basis of the grievance was "arguably'—at least— the contract, and there is no reason to conclude that the parties had intended the arbitration provi- sions to end with the contract's term." 242 NLRB at 408. The Board concluded in Digmor Equipment that American Sink Top was controlling when the postexpiration discharge the union sought to arbi- trate was based on conduct of the aggrieved em- ployee that occurred at least in part while the con- tract was still in effect. The Board accordingly held that the employer had violated Section 8(a)(5) by refusing the union's request to arbitrate the dis- charge. The judge in Digmor opined that the Board had overruled Hilton-Davis in light of NoIde in American Sink Top. In Cardinal Operating Co., 246 NLRB 279 (1979), however, a case that was decid- ed after American Sink Top, but did not apply Nolde, the Board adopted the judge's conclusion based on Hilton-Davis that the employer's unilateral refusal to arbitrate grievances arising after contract expiration did not violate Section 8(a)(5) absent an agreed-upon extension of the contract. Finally, in Southwest Security Equipment, two Board members, disclaiming reliance on American Sink Top, adopted pro forma the judge's conclusion that the arbitra- tion clause survived the expiration of the collec- tive-bargaining agreement. The judge there had cited American Sink Top for the proposition, inter alia, that the arbitration procedure survives the ex- piration of the contract creating it and cannot be modified unilaterally absent impasse. C. The above cases illustrate the need for clarifica- tion of Board law concerning the postexpiration duty to arbitrate in light of NoIde. Upon careful consideration, we begin by reaffirming the princi- ples expressed in Hilton-Davis that the arbitration commitment arises solely from mutual consent and that Congress did not intend the National Labor Relations Act to operate to create a statutory obli- gation to arbitrate. The national labor policy favoring arbitration originated in Section 203 of the Labor Manage- ment Relations Act (LMRA). Section 203(d) states that "final adjustment by a method agreed upon by the parties is hereby declared to be a desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement." Nowhere in the legislative history of this section, however, did Congress express an intent that congressional ap- proval of arbitration should be construed to en- dorse the imposition of a statutory duty to arbitrate. All indications point to the contrary. The Senate voted down a substitute for Section 203 that would have provided for compulsory arbi- tration of disputes over the meaning of existing col- lective-bargaining agreements that did not contain an arbitration clause. 93 Cong. Rec. S5036, 5098- 5099, 5103 (daily ed. May 9, 1947). The LMRA amended the Wagner Act to include a definition of "to bargain collectively" in the form of Section 8(d). Section 8(d) as passed by the Senate provided that "to bargain collectively is the performance of the mutual obligation to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employ- ment, or the negotiation of an agreement, or the settlement of any question arising thereunder . . . ." H.R. 3020, 80th Cong., 93 Cong. Rec. S5297 (daily ed. May 13, 1947). (Emphasis added.) The conference committee adopted the Senate's definition of collective bargaining in the form of Section 8(d), but deleted the underscored language. The House conference report states that "the Con- ference agreement omits from the Senate amend- ment words that were contained therein which might have been construed to require compulsory arbitration of grievance disputes and other disputes over the interpretation or application of the con- tract." H.R. Conf. Rep. No. 510, 80th Cong. 35 (June 3, 1947). The Supreme Court in Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960), gave effect to the congressional policy in favor of the voluntary settlement of disputes through arbitration by creating a presumption of arbitrability. This pre- sumption provides that an order to compel arbitra- tion under Section 301 of the LMRA "should not be denied unless it may be said with positive assur- 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." 363 U.S. at 582-583. At the same time, however, the Court recognized that the congressional prefer- ence for arbitration could be given effect only in the context of an agreement to arbitrate. After dis- cussing at length the important role of arbitration in ensuring industrial peace, the Court stated (363 U.S. at 582): The Congress, however, has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to ar- bitrate. For arbitration is a matter of contract and a party cannot be required to submit to ar- bitration any dispute which he has not agreed so to submit. The Court reaffirmed this principle in Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 374 (1974), stating unequivocally that "[nit) obligation to arbi- trate a labor dispute arises solely by operation of law. The law compels a party to submit his griev- ance to arbitration only if he has contracted to do so." The conclusion in Hilton-Davis that the Act does not impose a duty to adhere to the arbitration pro- cedure independent of any contractual commitment to do so is entirely in accord with the legislative history and Supreme Court decisions. We are unable to conclude that Nolde overruled Hilton- Davis in this respect. Nolde was a suit to compel ar- bitration and thus focused on the construction of the contract rather than the interpretation of the National Labor Relations Act. The Board in Hilton-Davis held that arbitration could not be compelled when the parties had not originally agreed to arbitrate. The Court in Nolde held that when the parties have agreed to arbitrate griev- ances arising under the contract, that obligation is presumed to continue. The underlying principles of both decisions are fully compatible. The Court ex- pressly rejected the employer's argument in Nolde that the imposition of a duty to arbitrate postexpir- ation grievances during a contractual hiatus would be contrary to prior decisions of the Court holding that arbitration is a creature of the collective-bar- gaining a'greement and cannot be imposed absent a contractual obligation. The Court simply observed that adherence to this basic principle did not re- quire it to hold that the termination of a collective- bargaining agreement automatically extinguishes the contractual obligation to arbitrate grievances arising under that agreement. 430 U.S. at 252. D. We do not, by our reaffirmation of the principles underlying Hilton-Davis, abandon our prior holding that arbitration is a mandatory subject of bargain- ing; i.e., a term or condition of employment con- cerning which the parties are required by the Act to meet and confer in good faith. See, e.g., U.S. Gypsum Co., 94 NLRB 112 (1951); see generally NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958). The Charging Party argues that because arbitration is a mandatory subject of bargaining, we are com- pelled by the Supreme Court's decision in NLRB v. Katz, 369 U.S. 736 (1962), to conclude that the Re- spondent's unilateral abandonment of that proce- dure during the contractual hiatus violated Section 8(a)(5). The Supreme Court concluded in Katz that an employer engaged in bona fide contract negotia- tions with the union nevertheless violated its duty to bargain under Section 8(a)(5) by simultaneously instituting changes in mandatory subjects of bar- gaining without consulting the union first. The Court reasoned that a showing of the employer's bad faith was unnecessary because the unilateral imposition of a new sick leave plan and a wage and merit increase system amounted to a flat refusal to bargain over the affected subjects. The Court in Katz construed the duty to bargain under the Act to require the employer to maintain the status quo in mandatory subjects of bargaining prior to negotiations or reaching agreement with the union and to offer the union an opportunity to bargain over proposed changes in mandatory sub- jects before changes are implemented. We do not believe that the Court's general formulation in Katz of the requirements imposed by Section 8(a)(5) is applicable to the postexpiration withdrawal from arbitration. To conclude otherwise flies in the face of the specific admonition of the Court and the clear intent of Congress that submission to arbitra- tion is purely a matter of consent and cannot be mandated by operation of the Act. Rather, we find, because an agreement to arbitrate is a product of the parties' mutual consent to relinquish economic weapons, such as strikes or lockouts, otherwise available under the Act to resolve disputes, that the duty to arbitrate is sui generis. It cannot be com- pared to the terms and conditions of employment routinely perpetuated by the constraints of Katz. We believe, therefore, that if a duty to arbitrate arising from such mutual and voluntary congent survives the expiration of the written agreerrient embodying it, it cannot be solely on the basis of general rules of bargaining developed under the National Labor Relations Act. Our view in this INDIANA & MICHIGAN ELECTRIC CO. 59 regard is not unprecedented. We have also de- clined to apply Katz to unilateral abandonment of union-security and dues-checkoff provisions follow- ing contract expiration because they, like arbitra- tion, are purely creatures of contract. See Bethle- hem Steel Co., 136 NLRB 1500, 1502 (1962), affd. in pertinent part sub nom. Shipbuilders v. NLRB, 320 F.2d 615 (3d Cir. 1963).4 E. We have held above that the obligation to arbi- trate cannot be created or maintained solely by op- eration of the Act. Accordingly, if the Respondent has an enforceable obligation to arbitrate the dis- putes originating during the 1978-1979 contractual hiatus, it arises from the 1976-1978 collective-bar- gaining agreements. We now turn to the conten- tions of the General Counsel and the Charging Party that the Respondent violated Section 8(a)(5) by _repudiating the commitment to arbitrate con- tained in those agreements and by breaching its contractual obligation under NoIde to arbitrate each of the nine hiatus grievances. It is well settled that a breach of contract is not per se an unfair labor practice. See, e.g., NCR Corp., 271 NLRB 1212, 1213 fn. 6 (1984); Para- mount Potato Chip Co., 252 NLRB 794 (1980); United Telephone Co. of the West, 112 NLRB 779, 782 fn. 4 (1955). On the other hand, where a breach of contract, under all the circumstances, amounts to a wholesale repudiation of the collec- tive-bargaining agreement, the Board will find an 8(0(5) violation. See, e.g., Sea Bay Manor Home for Adults, 253 NLRB 739, 741 (1980); Paramount Potato Chip Co., 252 NLRB 794, 796-797 (1980); Airport Limousine Service, 231 NLRB 932, 934-935 (1977); Bell Co., 225 NLRB 474, 481 0976); Curtis Mfg. Co., 189 NLRB 192, 196 (1971). Accordingly, the issue presented by the parties' contentions is whether the Respondent's conduct in refusing to arbitrate rose to the level of a repudiation of its contractual obligation. For the following reasons, we conclude that it did. At the outset, we note that the holding in Hilton- Davis that an employer is free to abandon the arbi- tration procedure during a contractual hiatus must be modified in light of Nolde. That holding was based on the assumption that when "the contract expires, the arbitration commitment expires." S & W Motor Lines, 236 NLRB at 948. Nolde teaches, however, that in certain circumstances the arbitra- 4 For the same reason we have concluded that Katz is inapposite to refusals to arbitrate, we also reject the General Counsel's supplemental argument, apparently found meritorious by the judge, that the Board should apply Nolde to impose a duty to arbitrate disputes over the mean- ing of employment terms that were established by a collective-bargaining agreement but remain in effect by operation of Katz tion commitment survives the expiration of the col- lective-bargaining agreement embodying it. Here, as in Nolde, the expired contracts contained a broad arbitration clause and did not contain lan- guage sufficient to negate the presumption that the contractual obligation to arbitrate grievances aris- ing under the contract extends to postexpiration disputes. 5 Accordingly, the Respondent remained subject to a potentially viable contractual commit- ment to arbitrate even after the contracts expired. The Respondent was not free to abandon the griev- ance-arbitration procedure unilaterally and without qualification upon the expiration of the 1976-1978 agreements. The Respondent's refusal to arbitrate constituted an unlawful unqualified abandonment because it encompassed not only grievances for which there may have been no postexpiration obli- gation to arbitrate under Nolde, but also grievances arbitrable under Nolde. The Respondent's conduct in refusing to arbi- trate cannot be characterized as a mere breach of the arbitration clauses of the expired contracts. Rather, the Respondent took the position that upon contract expiration it was no longer bound by the arbitration provisions. The Respondent followed through on its initial declaration that it would not apply the arbitration provisions during the contrac- tual hiatus by routinely refusing to arbitrate any hiatus grievance. It expressly grounded its refusal to arbitrate in each case on its general intention not to arbitrate any grievances arising while the parties were without a contract. The Respondent did not limit its refusal to arbitrate to a particular griev- ance or class of grievances. Accordingly, we find that the Respondent's entire course of conduct amounted to a wholesale repudiation of its contrac- tual obligation to arbitrate. See Paramount Potato Chip Co., 252 NLRB at 797; Taft Broadcasting Co., 5 The Respondent has excepted to the judge's conclusion that neither the presence of termination clauses in the 1976-1978 agreements nor the language in the arbitration clauses of those agreements limiting arbitra- Why to disputes over contract interpretation rebuts the Nolde presump- tion that the arbitration clauses were not intended to expire for all pur- poses with the agreements. We adopt the judge's conclusion. The arbitra- tion clauses in all four agreements are indistinguishable from arbitration provisions held to survive contract expiration. Local Joint Executive Board of Las Vegas v Royal Center, Inc , 119 LRRM 2958, 2960-2961 (9th Cir 1985) The presence of specified termination dates upon notice by either party in the termination clauses of the contracts also fails to rebut the Nolde presumption The contract at issue in Nolde itself contained such a clause We note that the termination clause us_ the General Office contract also states that "ON the event of termination of this agreement as herein provided, it shall cease to have binding effect, and the terms and conditions herein may be altered, modified, or terminated without further notice." We conclude that this language m the General Office ter- mination clause does not amount to the clearly implied or express nega- tion necessary to rebut the Nolde presumption that the broad arbitration clause here encompasses disputes arising after contract expiration See Nolde, 430 U S at 254, 255 Cf. Steelworkers v. Fort Pot Steel Casting, 105 LRRM 3232, 3235 (1980) 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 185 NLRB 202, 204 (1970). 6 We conclude, there- fore, that the Respondent violated Section 8(a)(5) and (1) of the Act by announcing to the Union upon the expiration of the 1976-1978 contracts that it would not arbitrate any grievances filed during the contractual hiatus and routinely refusing to ar- bitrate hiatus grievances as they arose.7 IV. REMEDY Having found that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist and post the appropriate notice. Also, we shall remedy the Respondent's unilateral abandonment of the last step of the grievance pro- cedure by ordering it to process the nine hiatus grievances through "initial arbitration." In accord with the analysis set forth in section III,C, above, however, it would be inappropriate to remedy the Respondent's repudiation of its contractual commit- ment to arbitrate by ordering arbitration of the nine hiatus grievances unless that commitment extends under Nolde to those particular grievances.8 Nolde provides a rule of construction for deter- mining whether an agreement to arbitrate con- tained in a collective-bargaining contract extends to disputes arising after the contract expires. Under Nolde, the parties are bound to arbitrate such dis- putes if they are over rights "arising under" the ex- pired contract, and the contract does not negate expressly or by clear implication the presumption favoring postexpiration arbitration of such disputes. We have held that the presumption favoring sur- vival of the arbitration commitment had not been negated here. Accordingly, whether the nine hiatus grievances are arbitrable under Nolde turns on whether they "arise under" the expired agreements. We acicnowlege that NoIde contains language with a broader sweep than its narrow holding that a claim to severance pay arguably accruable under the contract is arbitrable even though the plant closed after the contract expired. We conclude, however, in agreement with the circuit courts that have addressed the issue, that a dispute based on 6 That the Respondent also stated that the subject matter was not arbi- trable in refusing to arbitrate one of the nine hiatus grievances is not suf- ficient to undermine our finding as to the Respondent's overall conduct 7 we emphasize that, in so concluding, we do not depart from the long line of Board cases holding that the mere refusal to arbitrate a particular grievance or class of grievances is not a violation of the Act See, e g., GAF Corp., 265 NLRB 1361, 1364-1365 (1982), Whiting Roll Up Door Mfg. Corp, 257 NLRB 734, 734 fn. 2 (1981), Central Rufina, 161 NLRB 696, 700 (1966), Central Illinois Public Service Co., 139 NLRB 1407, 1418 (1962); United Telephone Co of the West, 112 NLRB 779, 781 (1955); Tex- tron Puerto Rico, 107 NLRB 583 (1953) We will continue to consider the facts of each case and find no violation where the contract may have been breached but the conduct complained of does not amount to a wholesale repudiation of a contractual commitment to arbitrate 8 The Board is empowered under its authority to remedy unfair labor practices to construe and give effect to contractual obligations NLRB v Strong Roofing Co, 393 U S. 357 (1969) postexpiration events "arises under" the contract within the meaning of Nolde only if it concerns contract rights capable of accruing or vesting to some degree during the life of the contract and rip- ening or remaining enforceable after the contract expires. See Teamsters v. C.R.S.T, 795 F.2d 1400, 1403-1404 (8th Cir. 1986) (right to be discharged for cause does not "arise under" expired agree- ment); Garment Workers Local 589 v. Kellwood Co., 592 F.2d 1008 (8th Cir. 1979) (scope of employer's obligation under expired contract to "maintain" pension benefits "in effect" arbitrable under Nolde). See also Joint Executive Board of Las Vegas v. Royal Center, Inc., 119 LRRM 2958, 2961 (9th Cir. 1985) (clause requiring sale of business to be conditioned on predecessor's assumption of contract "arises under" contract to preserve intent of parties that the clause be of some value to the union); Nibbs v. Felix, 726 F.2d 102, 104 (3d Cir. 1984) (dispute over failure to promote "arises under" expired con- tract only if eligibility list structured or prepared under that contract); Federated Metals Corp. v. Steelworkers, 648 F.2d 856 (3d Cir. 1981) (whether expired pension plan allowed years of service after contract expiration to be counted in determining eligibility upon plant closing arbitrable under Nolde); Teamsters Local 807 v. Brinks, Inc., 744 F.2d 283, 286 (2d Cir. 1984) (dispute over postex- piration withdrawal of recognition did not "arise under" expired contracts; nothing in contracts could be construed to cover status of representa- tive after expiration). See generally AT&T Technol- ogies v. Communications Workers, 121 LRRM 3329 (Apr. 7, 1986) (anaylsis extended beyond arbitra- tion clause to interpretation of contract right in- voked in determining arbitrability).9 The nine hiatus grievances in this case have been described above at footnote 2. The asserted con- tract rights relied on in those grievances are as fol- lows: the right to safe working conditions; the re- quirement that overtime be evenly distributed; the right to be disciplined only for proper and legiti- mate reasons; the prohibition on invidious discrimi- nation; the entitlement to extra pay for shift changes on short notice; the entitlement to higher 9 As noted above, American Sink Top, 242 NLRB 408, concerned a grievance arguably relating to events that occurred in part before the contract expired Nolde states that "it could not be seriously contended" that contract expiration would terminate the contractual obligation to ar- bitrate disputes based on preexpiration events 430 US. at 251. To the extent, however, that American Sink Top can be read to hold that the mere invocation of any term of the expired contract triggers the posies- piration duty to arbitrate under Nolde, we do not adhere to it. This is the point on which we differ with our dissenting colleague, Member Johansen In our view, the position of his dissent rests on an overly broad reading of Nolde, and we note that that position la inconsist- ent with the way Nolde has generally been read by the lower ,courts, as the cases cited above demonstrate INDIANA & MICHIGAN ELECTRIC CO. 61 pay if temporarily assigned above classification; and the entitlement to living expenses while away from headquarters overnight.10 We have examined the pertinent contract provi- sions and conclude that the rights invoked in each grievance do not "arise under" the expired con- tracts within the meaning of Noide. All of the nine grievances were triggered by events or conduct that occurred after the expiration of the contracts. None of the rights invoked were worked for or ac- cumulated over time, and there is no other indica- tion that the parties contemplated that such rights could ripen or remain enforceable even after the contracts expired. Teamsters v. C.R.S.T., supra. We therefore conclude that, in the circumstances here, the Respondent had no contractual obligation to arbitrate any of the nine hiatus grievances." Ac- cordingly, we shall not order the processing of those particular grievances to arbitration here. ORDER The National Labor Relations Board orders that the Respondent, Indiana and Michigan Electric Company, Fort Wayne, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively, within the meaning of the Act, with Local Union No. 1392, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive bargaining representa- tive of its employees in the appropriate units, by unilaterally repudiating the arbitration provisions of the 1976-1978 South Bend, Marion-Muncie, Fort Wayne, and General Office collective-bargaining agreements. (b) Refusing to bargain collectively with Local Union No. 1392, International Brotherhood of Electrical Workers, AFL-CIO, by unilaterally abandoning the "initial arbitration" procedure in the 1976-1978 South Bend, Marion-Muncie, Fort Wayne, and General Office collective-bargaining agreements , after those agreements expired. (0 In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. '° See Fort Wayne agreement, arts II, VI, and VII, Marion-Muncie agreement, arts. II, VI, XIX, and XXII; South Bend agreement art. VI, sec. 5. The Respondent does not contend to the Board that any of the grievances concern nonarbitrable subject matter None of the grievances at issue were filed under the General Office contract. II Whether the conduct complained of in the nine hiatus grievances constituted unlawful unilateral changes in terms or conditions of employ- ment is not before us because no such violation was alleged (a) On the Union's request, process the nine grievances at issue in this proceeding through "ini- tial arbitration" as defined in the 1976-1978 collec- tive-bargaining agreements. (b) Post at its facilities in Fort Wayne, Marion, Muncie, South Bend, Elkhart, Berne, Bluffton, Kendallville, Butler, and Ligonier, Indiana, and its facilities in Benton Harbor and Buchanan, Michi- gan, copies of the attached notice marked "Appen- dix." 12 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the remainder of the complaint is dismissed. CHAIRMAN DOTSON, dissenting in part. I join my colleagues in the majority with respect to the analysis of all arbitration issues presented. I dissent, however, from their failure to apply the same analysis to contractual grievance procedures. Although I would adhere to the rule that an em- ployer has an obligation at all times under Section 8(d) of the Act to meet and to confer with a bar- gaining representative about employee grievances,' I would hold that the postexpiration duty to follow contractual grievance procedures generally sur- vives only as an adjunct of the limited postexpira- tion duty to arbitrate grievances which involve rights "arising under" the expired contract and which are subject to postexpiration arbitration by the terms of the contract. Consequently, I would find that the Respondent violated Section 8(a)(5) with respect to the parties' contractual "initial arbi- tration" grievance only insofar as its blanket repu- diation of postexpiration action comprehended issues which it would have to take to arbitration. Section 8(d) explicitly requires the parties in a collective-bargaining relationship to "meet at rea- sonable times and confer in good faith with respect to wages, hours, and other terms and conditions of 12 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" See, e g., Pennsylvania Telephone Guild (Bell Telephone), 277 NLRB 105 (1985), Storall Mfg Co., 275 NLRB 220 (1985). 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employment." Beyond this general mandate, the Act affords broad discretion to the parties. It does not specify how, when, or where they must meet and confer concerning contracts or individual grievances, nor does it require agreement to specif- ic proposals. As a general rule, the Act also obligates an em- ployer to bargain with its employees' exclusive rep- resentative following contract expiration before the employer may depart from established terms and conditions of employment which are mandatory bargaining subjects. Individual grievances and the grievance process are mandatory subjects of bar- gaining. Bethlehem Steel Co., 136 NLRB 1500 (1962), enfd. in relevant part 320 Fld 615 (3d Cir. 1963). The arbitration process is also a mandatory subject of bargaining. U.S. Gypsum Co., 94 NLRB 112 (1951), enfd. in relevant part 206 F.2d 410 (5th Cir. 1953). In spite of the general rule of postexpir- ation survival, the Board has recognized exceptions for contract terms governing the relationship be- tween an employer and the labor organization rep- resenting its employees. In Bay Area Sealers, 251 NLRB 89 (1980), enfd. as modified on other grounds 665 F.2d 970 (9th Cir. 1982), the Board stated (251 NLRB at 90): Although an employer's contractual obliga- tions cease with the expiration of the contract, those terms and conditions established by the contract and governing the employer-employ- ee, as opposed to the employer-union, relation- ship survive the contract and present the em- ployer with a continuing obligation to apply those terms and conditions unless the employer gives timely notice of its intention to modify a condition of employment and the union fails to timely request bargaining, or impasse is reached during bargaining over the proposed change. Consistent with the distinction drawn in Bay Area Sealers, 2 the Board has held that there is no general statutory postexpiration duty to follow contract procedures ordering the employer-union relationship with respect to such mandatory bar- gaining subjects as union-security, dues checkoff,3 2 Although the majority questions the validity of my reliance on the distinction drawn in Bay Area Sealers, I note that neither the D C Circuit opinion cited, Southwestern Steel & Supply v NLRB, 806 F 2d 1111 (1986), nor an earlier Ninth Circuit opinion, NLRB v Southwest Security Equipment Corp., 736 F.2d 1332 (1984), expressly rejected this test for de- fining exceptions to the general rule of postexpiratton survival of manda- tory terms and conditions of employment Each court merely rejected an employer's attempt to justify an exception for hiring hall procedures by defining them as essentially governing employer-union relations 3 Bethlehem Steel Co., supra and arbitration. 4 I would hold the same for the contractual grievance process. There are a wide variety of grievance proce- dures established by collective-bargaining agree- ments to allow the parties to resolve disputes over contract interpretation. As with arbitration, these procedures involve the surrender by each party of a part of the full range of bargaining flexibility per- mitted under Section 8(d). Although substantive employee rights are determined through the griev- ance procedure, the procedure itself essentially governs the union-employer relationship. The par- ties must adhere to that procedure during the con- tract but, in accord with Bay Area Sealers, not after contract expiration. Furthermore, if the balancing of statutory bargaining rights against the national policy encouraging voluntary dispute resolution systems has led the Board here to conclude that only a limited postcontractual duty to arbitrate exists, then the same conclusion would seem to follow with respect to a contractual grievance pro- cedure. Postexpiration change in the , grievance proce- dure does not per se undermine a union's represent- ative status. In this case, for instance, there has been no showing whatsoever that elimination of "initial arbitration" from multistep grievance dis- cussions had any adverse impact on the ability of the Union to represent its grievants. Indeed, the possibility exists that in some instances elimination of a postexpiration duty to follow the contractual grievance procedure will permit a union represent- ative to pursue grievances that would have been time-barred or to discuss matters expressly ex- cluded from grievance consideration under the contract. In addition, there are statutory limits on the kind of postcontractual change which may occur. An employer may refuse to follow a contractual griev- ance procedure but it must bargain with a union about any alternative to be used. There may also be certain aspects of a contractual grievance proce- dure which are so intertwined with substantive em- ployee rights that they must be honored even after contract expiration. 3 This case does not involve such a situation. The Respondent here fulfilled its statutory grievance bargaining obligation by adher- ing to all contractual procedures but the final prearbitral step of "initial arbitration." I see no stat- utory basis for requiring the Respondent to adhere to this specific manner of discussing all postexpira- 4 Hilton-Davis Chemical Ca, 185 NLRB 241 (1970) 5 See, e g, Axelson, Inc , 234NLRB 414 (1978), enfd 599 F 26 91 (5th Cir. 1979) INDIANA & MICHIGAN ELECTRIC CO. 63 tion grievances in order to meet its bargaining obli- gation. Finally, it does not seem to make a great deal of common sense to me for the Board to exercise its authority in an effort to preserve a "headless horse- man." We have here reaffirmed that only a limited postexpiration duty to arbitrate exists. Why then require preservation of the precise form of a griev- ance procedure which the parties in all likelihood negotiated in express contemplation of the ultimate availability of arbitration? Wherever the possibility of arbitration has ceased to exist, the better way for the Board to fulfill its statutory duty to encourage meaningful collective bargaining during a contract hiatus would be to permit greater spontaneity and flexibility in grievance negotiations rather than to insist upon rigid adherence to an expired and trun- cated contractual dispute resolution system. For the foregoing reasons, I would overrule Board precedent6 and hold that the postexpiration duty to follow the contractual grievance procedure generally exists only to the extent of a parallel postexpiration duty to arbitrate grievances "arising under" the contract. According to this view, the Respondent's blanket repudiation of "initial arbitra- tion" was unlawfully overbroad but it had no obli- gation to follow the "initial arbitration" process for any of the nine postcontractual grievances specifi- cally at issue. MEMBER JOHANSEN, concurring and dissenting in part. I agree that the Respondent violated Section 8(a)(5) of the Act by unilaterally abandoning part of the grievance procedure after the contracts ex- pired. I also concur in my colleagues' conclusion that the Respondent violated Section 8(a)(5) of the Act by repudiating arbitration after the contracts expired. I dissent, however, from my colleagues' conclu- sion in the Remedy section that the Respondent should not be ordered to arbitrate the nine hiatus grievances. The Court in NoIde Bros. V. Bakery Workers Local 358, 410 U.S. 243 (1977), did not rely on the accruability of the right asserted in con- cluding that the severance pay dispute was arbitra- 6 E g., Bethlehem Steel, supra Contrary to the majonty's contention, I do not infer from Bay Area Sealers "an intent sub silentio to overrule" this precedent The majority correctly observes that the Board was not considering the issue of postexpiration changes in a grievance procedure in Bay Area Sealers, Consequently, I would infer neither an intent to overrule 'nor to reaffirm Bethlehem Steel in Bay Area Sealers The employ- er-employee/employer-union distinction articulated in Bay Area Sealers, notwithstanding its arguable classification as dictum, stands as precedent which neither the Board nor the courts have repudiated Applying this precedent in the context of statutory considerations I have reviewed in this opinion, I would overrule Bethlehem Steel as indicated ble. Rather, it found that the dispute arose under the expired contract because it "hinge[d] on the in- terpretation ultimately given the contract clause . . • ." 430 U.S. at 249: The Court summarized its holding as follows (430 U.S. at 255): In short, where the dispute is over a provision of the expired agreement, the presumptions fa- voring arbitrability must be negated expressly or by clear implication. Specific contract rights were invoked by each of the nine grievances. In my view, therefore, the grievance disputes were over provisions of the ex- pired contracts and thus "arose under" the con- tracts within the meaning of Nolde. Further evalua- tion of the extent of the contract rights invoked en- croaches on the merits of the dispute, an area re- served for the arbitrator. I agree that the presumption favoring arbitrabi- lity of postexpiration disputes has not been rebutted here. Accordingly, I would order the Respondent to arbitrate, on request, each of the nine hiatus grievances. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local Union No. 1392, International Brotherhood of Electrical Workers, AFL-CIO as the exclusive representative of the employees in the appropriate bargaining units by generally repudiating any obli- gation to arbitrate grievances arising after contract expiration and by refusing to fully comply with the grievance procedure, including "initial arbitration," established in the 1976-1978 collective-bargaining agreements, after those agreements expired and until the 1979-1981 agreements took effect. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on the Union's request, process through "initial arbitration" any grievances arising after the 1976-1978 contracts expired and before the 1979-1981 contracts were entered into. INDIANA AND MICHIGAN ELECTRIC COMPANY 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD J. Frederick Gatzke, Esq., for the General Counsel. Gary L. Lieber, Esq., of Washington, D.C., for Respond- ent. Robert D. Kurnick, Esq., of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge. This proceeding was heard before me on December 18, 1980, pursuant to a charge filed on January 22, 1979, and a complaint issued on March 13, 1980, and amended on April 29, 1980. The issue presented is whether Respond- ent Indiana and Michigan Electric Company violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended (the Act), by unilaterally modifying through abandonment and refusing to follow certain por- tions of the grievance-arbitration procedures set forth in certain collective-bargaining agreements between Re- spondent and Local Union No. 1392, International Brotherhood of Electrical Workers, AFL-CIO (the Union). The conduct attacked in the complaint was di- rected toward grievances filed, and relating to events that occurred after the termination dates set forth in the duration clauses of such bargaining agreements, and before the effective dates set forth in the duration clauses of the parties' subsequent bargaining agreements. On the basis of the entire record, including the de- meanor of the one witness who testified before me, and after due consideration of the briefs filed by Respondent, the Union, and the General Counsel, I make the follow- ing FINDINGS OF FACT I. JURISDICTION Respondent is an Indiana corporation that maintains its principal office and place of business in Fort Wayne, In- diana. Respondent also maintains other facilities in Indi- ana and Michigan. Respondent is engaged at such facili- ties in the production, sale, and transmission of electrical energy as a public utility. During the 12 months preced- ing the issuance of the complaint, a representative period, Respondent's gross revenues exceeded $250,000; and Respondent purchased and received, at its Indiana facilities, products, goods, and materials valued in excess of $50,000 directly from points outside Indiana. I find that as Respondent admits Respondent is engaged in commerce within the meaning of the Act, and that asser- tion of jurisdiction over its operations will effectuate the policies of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On various dates between 1952 and 1971, the Union or its predecessors were certified by the Board as the exclu- sive representatives of three admittedly appropriate sepa- rate units of Respondent's employees. Regarding a fourth admittedly appropriate unit, the Union has been the rec- ognized representative since 1934. These units are specif- ically described infra in Conclusion of Law 3. For con- venience, they will be referred to as the Marion-Muncie unit, the South Bend unit, the Fort Wayne unit, and the General Office unit. The Union negotiates a separate bar- gaining agreement for each unit. The 1976-1978 collective-bargaining agreement with respect to the South Bend unit stated: Period of Contract Except as herein otherwise expressly provided, all of the provisions of the Agreement shall be in full force and effect beginning March 4, 1976, and shall continue in full force and effect until Mid- night, October 31, 1978, and thereafter for successive one year periods unless one of the parties hereto on or before the sixtieth (60) day preceding November 1, 1978, or November 1st of any successive year shall notify the other party hereto in writing of its desire to modify or terminate the same. [Emphasis added.] The 1976-1978 contract with respect to the Marion- Muncie unit contained the following provision: Term The Agreement shall be in full force and effect beginning March I, 1976, and shall continue in full force and effect until midnight, November 30, 1978, and thereafter for successive one-year periods unless either party hereto shall notify the other party in writing at least sixty (60) days prior to November 30, 1978, or sixty (60) days prior to the anniversary date in any subsequent year this Agreement is in effect, of its desire to modify or terminate the agreement. [Emphasis added.] The 1976-1978 contract with respect to the Fort Wayne unit contained the following provision: Period of Contract This agreement shall take effect March 3, 1976, for a fixed period ending midnight, December 1.5, 1978, and shall continue in full force and effect from year to year thereafter unless written notice is given by either party hereto to the other on or before sixty (60) days prior to the termination of the fixed period or any subsequent annual expiration date requesting that this Agreement be amended or canceled. . . . [Emphasis added.] The 1976-1978 contract with respect to the General Office unit contained the following provision: Period of Contract Except as herein otherwise expressly provided, this Agreement shall be in full force and effect be- ginning March 4, 1976, and shall continue in full force and effect until midnight, December 31, 1978, and thereafter for successive one (1) year periods INDIANA & MICHIGAN ELECTRIC CO. 65 unless either party hereto shall notify the other party in writing at least sixty (60) days prior to the anniversary date in subsequent years this Agreement is in effect of its desire to modify or terminate the Agreement, in either of which events this Agree- ment shall terminate on the anniversary date follow- ing such notice. In the event of termination of this Agreement as herein provided, it shall cease to have binding effect, and the terms and conditions set forth herein may be altered, modified, or terminated without further notice. [Emphasis added.] Regarding each of these four units, the 1971-1973, 1974-1975, and 1979-1981 contracts contained the same duration language (except for the italicized dates) as the quoted 1976-1978 language applicable to that unit. With respect to each of these contracts except the 1979-1981 contracts (which at the time of the hearing had not yet reached their earliest possible termination date), one of the parties gave a 60-day notice on the ear- liest date permitted by the relevant duration clause. The 1973-1975 contracts became effective with the termina- tion of the 1971-1973 contracts, but there were gaps, varying in length from 2 months (General Office) to 4 months (South Bend), between the termination of the 1973-1975 contracts and the effective dates of the 1976- 1978 contracts. During this hiatus, the Union engaged in a strike primarily because of Respondent's refusal to re- lease the employee members of the Union's bargaining committee from work, while at the same time refusing to meet with the committee outside of working hours.' The Union's economic demands were a contributing factor. In January 1976, after all the 1973-1975 contracts had expired and before new 1976-1978 contracts had been agreed to, Personnel Director W. Hugh Willmore stated during negotiations at South Bend that Respondent would not agree to arbitrate grievances that arose after the contractual expiration date. Union Representative E. J. Bailey stated that it was the Union's position that all the terms and conditions in previous agreement would continue as they were.2 By letter dated August 18, 1978, Union Business Man- ager Alan Goddard advised Labor Relations Supervisor Norman C Hitzeman that "According to the terms of the present Working Agreements," the Union was re- questing meetings to modify all four contracts. By letter dated August 29, 1978, Hitzeman replied: We hereby acknowledge receipt of your letter of August 18, 1978, notifying us of your desire to modify the present collective bargaining agreement The Board found in May 1977 and April 1978 that similar conduct by Respondent in the fall of 1975 violated Sec 8(a)(5) and (1) of the Act Indiana & Michigan Electric Co, 229 NLRB 576 (1977), 235 NLRB 1128 (1978), enfd 599 F.2d 185 (7th Cir. 1979), cert. denied 444 U.S 1014 (1980) Union Business Agent Alan Goddard testified about Respondent's 1976 conduct, and said an administrative law Judge found that the case was moot because the Board's decision in the case had already been en- forced by the Court of Appeals for the Seventh Circuit and was on its way to the Supreme Court. I have made no effort to track down the case involving Respondent's 1976 conduct 2 The Union's brief states that this statement was made during negotia- tions regarding the South Bend unit. Concerning this, the transcript standing alone is unclear dated March 5, 1976 [covering the] South Bend [unit]. Further, we acknowledge that the present collective bargaining agreement will terminate eff- fective October 31, 1978, in the event of failure to reach agreement by that date. The Indiana & Michigan Electric Company also desired to terminate the collective bargaining agree- ment, Retirement Plan agreement, Group Life In- surance agreement, Medical agreement, Long Term Disability agreement and any side agreements or understandings and agreements between the Compa- ny and the Union. You are hereby notified of this desire in accordance with Title 1, Section 8(d) of the National Labor Relations Act as amended and further in accordance with [the "Period of Con- tract" clause] of the present collective bargaining agreement. I would suggest an initial meeting on Thursday, September 28, 1978 at 1:30 p.m. to commence such negotiations. If the date is acceptable, please let me know and arrangements will be made for a meeting place. Thereafter, Hitzeman sent a September 25, 1978 letter to Goddard with respect to the Marion-Muncie unit, and October 5, 1978 letters to Goddard with respect to the Fort Wayne and General Office units respectively. These letters were substantially the same as the South Bend letter, except that they proposed different dates for an initial negotiating meeting and recited as the 1978 date on which the existing agreement would terminate in the event of failure to reach agreement by that date, Novem- ber 30, December 15 and 31, respectively. On October 18, 1978, during the negotiations in South Bend, Willmore gave a 45-minute speech about the status of negotiations. About two-thirds of the way through his speech, he stated that should the contract expire, Re- spondent would not agree to arbitrate grievances that arose after the contractual expiration date and would not collect dues from the union members. After Willmore had finished his speech, the 'Union caucused. Then, the Union told Respondent that the parties were there for the purpose of negotiating a new agreement; that because of the Union's desire to reach a new agreement, the Union did not feel that Respondent's "paranoia" was necessary; that the Union did not feel it was appropriate to waste time making, hearing, or responding to threats; and that the parties should spend their time dealing with the business at hand, which was to negotiate a new agreement. All four of the contracts expired and Respondent and the Union did not agree to extend the expired agree- ments. Although new contracts effective until late 1981 were eventually executed with respect to all four units, they were not effective until early November 1979. B. No-Strike and Grievance-Arbitration Provisions in the 1976-1978 Agreements All four of the 1976-1978 agreements contained no- strike clauses. The Marion-Muncie contract provided, in part, "It is the mutual desire of both parties hereto to 66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD provide for uninterrupted and continuous service; there- fore . . . . The Union agrees that while this Contract is in effect none of its members will . . . participate in any strike."3 Further, the preamble to this contract recited, inter alia, "The parties hereto have reached an agree- ment through collective-bargaining for the purpose of fa- cilitating the peaceful adjustment of differences that may arise from time to time, and for the purpose of promot- ing harmony and efficiency to the end that the employ- ees, the Company and the general public may mutually benefit. The parties hereto contract and agree with each as follows." The South Bend and General Office con- tracts read, in part, "Inasmuch as a grievance and arbi- tration procedure has been agreed upon, there shall be no strikes . . . during the life of this agreement or exten- sion thereof. Violation of this provision by any employee will be immediate and complete cause for discharge." The Fort Wayne contract provided, in part, "It is ex- pressly understood and agreed that the services to be performed by the employees covered by this Agreement pertain to and are essential to the operation of a public utility and to the welfare of the public dependent there- on, and in consideration thereof and of the covenants and conditions herein by the Company to be kept and performed (a) [the Union agrees] that the employees cov- ered by this agreement, or any of them WILL NOT be called upon or permitted to cease or abstain from the continuous performance of the duties pertaining to the positions held by them with the Company IN ACCORD WITH THE TERMS OF THIS AGREEMENT. . . and (c) the parties hereto agree that any differences which may arise between them regarding the interpretation or application of any provision of this Agreement shall be settled in the manner hereafter provided." Further, the preamble to this contract read, in part, "For the purpose of facilitat- ing the peaceful adjustment of differences that may arise from time to time, to promote harmony and efficiency to the end that the Company, and the Local Union and the general public may mutually benefit, the parties hereto contract and agree with each other as follows. . . ." Prior contracts covering the foregoing respective units contained the same respective language. During the negotiations that let up to the 1979-4981 cOntracts, the Union never considered striking, never told Respondent that the Union had the right to strike, and at one time informed Respondent that the Union had no intention of going on strike. All four of the 1976-1978 contracts contained a griev- ance procedure that consisted of four steps prior to "ini- tial arbitration" (see infra) and afforded the Union and the right to require Respondent to submit certain gnev- ances to arbitration. The Marion-Munice contract con- tained the following language: Section 1. a. Should differences arise between the Company and the Union involving the interpretation and ap- plication of the terms of this agreement an earnest effort shall be made immediately to settle such dif- ferences in the following manner: 3 The contract contained no union-security clause Section 2. a. In the event of failure to satisfactorily settle or adjust any grievance involving the interpretation and applicaton of the terms of this Agreement ac- cording to the foregoing procedure . . . such arbi- trable grievance may be submitted to arbitration in the following manner: The South Bend contract contained the following lan- guage (emphasis added): Section 1(a): Should any dispute or disagreement arise between an employee and the Company, except as provided in [the no-strike clause], such dis- pute or disagreement shall constitute a grievance and be disposed of in the following manner: Section 3(a): In the event of failure to satisfactori- ly settle or adjust any grievance involving an alle- gation of a violation of a term or terms of this Agreement according to the foregoing procedure, . . . such arbitrable grievance may be submitted to arbitration in the following manner: Section 1(a) of the Fort Wayne grievance-arbitration article was the same as section 1(a) of the South Bend grievance-arbitration article, except that the italicized language was omitted. Section 1(a) the General Office grievance-arbitration article was the same as Section 1(a) of the South Bend grievance-arbitration article, except that before the italicized language appeared the words "involving aji allegation of a violation of a term or terms of this Agreement." Section 3(a) of the Fort Wayne and General Office grievance-arbitration articles was the same as section 3(a) of the South Bend grievance-arbitra- tion article, except that the Fort Wayne contract con- tained the words "by either the Union or the Company" after the word "arbitration." All but the Marion-Muncie contract contained the fol- lowing language: The initial arbitrators [see infra] or the sole arbi- trator shall have no authority to (1) add to, detract from, or in any way modify the terms of this agree- ment; or (2) pass upon any question involving regu- lar wage rate schedules with the exception of new or changed jobs. . . .4 The Marion-Muncie contract withheld from the arbitra- tors the authority "to add to, detract from or in any way modify (1) the terms of this agreement or (2) any wage rate schedule. . . with the exception of new or changed jobs" (see supra fn. 4). All four contracts contained the following language: 4 At this point, each contract defines "new or changed jobs" by refer- ring to a provision much the same as the Fort Wayne provision quoted infra fn 9 INDIANA & MICHIGAN ELECTRIC CO. 67 Notwithstanding the provisions of [sec. 2(a) of the Marion-Munci grievance-arbitration clause, or sec. 3(a) of such clauses in the other contracts]: Grievances which do not involve interpretations or applications of a specific term or terms of this Agreement. . . shall not be arbitrable. This last-quoted clause does not appear in the 1971- 1973 or 1973-1975 Marion-Muncie contracts. Otherwise, the prior contracts had contained virtually the same grievance-arbitration provisions quoted above. The contracts effective between 1971 and 1978 all con- tained under the heading "arbitration Procedure and Rights of Arbitration," a provision that within 10 days after Respondent had received written notice from the Union of a desire to arbitrate, each party was to select an "arbitrator" to be paid by it. If these "initial arbitrators" could not agree in writing on the grievance so referred to them, "then they shall choose a wholly disinterested person to act as a sole arbitrator who shall have the au- thority to make the final decision and the two initial arbi- trators shall be discharged as arbitrators." The "sole arbi- trator's" compensation and expenses were to be borne equally by Respondent and the Union. C. Respondent's Abandonment of "Initial Arbitration" and Arbitration A letter from Willmore to Goddard dated November 3, 1978, regarding the South Bend unit, stated in part: On October 31, 1978, the current agreement be- tween the Company and [the Union] expired. Nego- tiations for a new agreement have not been success- ful and thus there is presently no agreement in effect for this Bargaining Unit. Additionally, since the termination of the con- tract on October 31, 1978 no longer affords the Company the protection provided by [the no-strike clause] of that Agreement, you are hereby advised that [the clause providing for initial arbitration and arbitration] will not be applied during the time period we are without an agreement. Similat letters dated December 4 and 18, 1978, and January 2, 1979, were sent by Willmore with respect to the Marion-Muncie, Fort Wayne, and General Office units respectively. The Union did not write Respondent any letters in reply to the foregoing. On January 22, 1979, the Union filed its charge herein, alleging that Re- spondent had violated the Act by, inter alia, "refusing to arbitrate grievances." There is no evidence that before that date, Respondent had refused to arbitrate any par- ticular grievances. Goddard credibly testified that this charge was the Union's reply to the foregoing letters. D. Grievances Respondent Refused to Process Through Later Stages of Grievance-Arbitration Procedure On various dates between January 1979 and March 1979, employees in the Marion-Muncie, South Bend, and Fort Wayne units filed grievances based in whole or in part on conduct that was allegedly inconsistent with specified clauses in the 1976-1978 agreement covering the unit in question. In each case, the conduct in ques- tion took place after the expiration date set forth in the 1976-1978 agreement with respect to the relevant unit. No contention is made, and I perceive no basis for such a contention, that the merits of any of these grievances would have been affected by whether the conduct com- plained of had been engaged in before the 1976-1978 contracts had expired or after the effective dates of the November 1979 contracts. With the possible exception of a grievance filed by Fort Wayne meter readers on March 26, 1979 ( see infra, part II,C,3,b and fn. 24), there is no contention or evidence that any proposal ever made by either party during negotiations, if accepted by the other, would have affected the merits of any of these griev- ances, regardless of when the complained-of conduct oc- curred. No contention is made that the procedure fol- lowed by the Union as to such grievances was in any way inconsistent with the 1976-1978 contracts. All these grievances were processed through the fourth step of the grievance procedure, and at that stage were wholly or partly rejected by management. Regarding each of these grievances, Respondent asked the Union, during the third or fourth step of the grievance procedure, which contract provisions the Union was relying on, and the Union specified such provisions.5 Concerning each of these grievances, after the issuance of management's fourth-step response, Union Business Manager Goddard sent Labor Relations Supervisor Hit- zeman a letter that specified the docket number or num- bers of the grievance and read as follows: We received an unsatisfactory answer in the fourth step, to the grievance of [grievant's name, department, and facility location]. Therefore, according to the terms of the Work- ing Agreement between the Company and the Union, we are requesting initial arbitration to settle this dispute. I will act as initial arbitrator for the Union. Please have the Company arbitrator contact me in regard to this grievance. In response to each of these letters, Personnel Director Willmore sent a letter that read as follows: Your letter . . . requests advancing the above- referenced grievance to initial arbitration. It continues to be the Company's position that it will not arbitrate grievances relating to alleged vio- 5 Regarding most of the grievances, the record specifically shows that the Union told management which contract clauses were being relied on. From Goddard's credible testimony that as to each grievance Respondent asked for such information, I infer that it was given as to each grievance 68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lations of the contract which occurred during a contractual hiatus. As set forth in greater detail infra part II,C,3,b, one of these grievances, filed by a group of meter readers in the Fort Wayne unit, contended that for safety reasons, each meter reader should be assigned a particular route, rather than being rotated among routes as Respondent was then requiring them to do. Willmore's July 1979 letter in con- nection with this grievance went on to state, "Signifi- cantly, even if the expired contract were still in effect, or alternatively even if a new contract consistent with the Company's offer, dated December 14, 1978, were in effect, this grievance would not be arbitrable due to its subject matter." Before Goddard requested "initial arbitration" of any of these grievances, Respondent proposed the elimination of the provisions for "initial arbitration" in all four con- tracts. These provisions, which had appeared in the 1971-1973 contracts and in the two succeeding sets of contracts (1973-1975 and 1976-1978), had initially been proposed by Respondent. They did not appear in the 1979-1981 contracts, whose grievance-arbitration clauses are otherwise much the same as those in the respective contracts that preceded them. 6 The foregoing evidence aside, there is no evidence what position the Union took with respect to the elimination of "initial arbitration," or when such elimination was agreed to. The grievances about which the Union requested "ini- tial arbitration" and Respondent refused are summarized below. 1. Marion-Muncie grievances a. McCormick's grievance about his suspension for absenteeism (Grievance MU 78-13) On January 12, 1979, Mike McCormick, an employee in the Marion-Muncie unit, filed a grievance regarding his 15-hour suspension on December 6 and 7, 1978, for "continued unauthorized and excessive absenteeism." The hand-printed entry on his step 2 grievance form states, after "Nature of Grievance," "Artical [sic] XXII non discrimination." Article XXII forbids discrimination "because of race, creed, color, sex, national origin, age, or handicap." This position was adhered to through at least step 3 of the grievance procedure. Respondent's responses at steps 2, 3, and 4 indicate that McCormick and/or the Union contended that he had failed to come to work because his car broke down; that he had been unable to reach Respondent by tele- phone; and that other personnel in the department had been absent at least as often as McCormick without being disciplined. Respondent rejected these contentions on the ground that McCormick could have given a tele- phone message to Respondent if he had made the effort, and that regarding the other employees' absences, Re- spondent had been given advance notice or they had been excusable. Respondent's step 2 response stated that 6 The most significant additional changes added in 1979 rendered unar- bitrable certain claims for benefits under the "Savings Plan" and "Sick Leave and Layoff Allowance Plan" No such claims are Involved here concerning McCormick's discipline, "there was no viola- tion of the Working Agreement, therefore, your griev- ance is denied." During the fourth step of the grievance procedure, Union Representative Goddard informed Respondent that the Union was contending that Respondent was vio- lating article II, the management-rights clause of the 1976-1978 agreement; the Union did not rely on any other portion of the agreement. More specifically, God- dard referred to the provision in that clause that Re- spondent had the right to discipline employees for "proper or legitimate reasons." b. McCormick's grievance about his suspension (Grievance MU 79-02) On March 1, 1979, McCormick filed a grievance re- garding his 5-day suspension on January 29, 1979, for im- proper job performance and sleeping on company time. His written grievance relied on articles II and XXII, the management-rights and nondiscrimination clauses of the 1976-1978 agreement. Dunng the fourth-step grievance meeting, the Union contended that such discipline violat- ed article II (which gives Respondent the right to "sus- pend [and] discipline. . . employees. . . for. . . proper and legitimate reasons") on the ground that Respondent did not have proper, legitimate reasons for the discipline. c. Evans' grievance for failure to receive overtime work (Grievance MU 79-03) On March 5, 1979, Marion-Muncie unit employee Billy R. Evans filed a grievance regarding Respondent's fail- ure to call him for overtime work on February 25, 1979. His grievance alleged that Respondent's action was a "Violation of Written Aggrement [sic] and past prac- tices." Respondent's second-step rejection of the griev- ance states, inter alia, "I. . . cannot find any violation of the working agreement." During subsequent discussions, Evans and/or the Union further alleged that the working foreman on the job performed work belonging to a bar- gaining-unit employee. At the third step of the grievance procedure, Respond- ent rejected the grievance on the ground that the fore- man had "performed well within the scope of the letter of agreement to which you referred as well as past prac- tices [cf. infra fn. 8]. The work he performed was pre- dominantly regarding safety factors and to supervise ex- pedient restoration of customer's electric service. On site supervision as well as consultation with the Engineering Department supervisor was justified because the cause of the outage was not easily identifiable" At the fourth-step grievance meeting, the Union alleged that Respondent's conduct violated article V, section 9, of the 1976-1978 agreement, which provides, in part, "Overtime shall, so far as is practicable, be equitably distributed within the department." Labor Relations Supervisor Hitzeman re- jected this grievance at the fourth step on the ground, inter alia, that the line supervisor who called out the foreman to the job thought that the problems on the job required the foreman's "expertise," and that "calling out a supervisor under such conditions is not a departure from past practice." INDIANA & MICHIGAN ELECTRIC CO. 69 d. Keating's grievances in connection with his Tanner's Creek assignment (Grievance MU 79-04) On January 30, 1979, Marion-Muncie employee Brad- ford Keating filed 13 grievances complaining of Re- spondent's alleged conduct on January 11, 1979, in con- nection with his assignment to work in Tanner's Creek, some distance from the location of his ordinary work as- signment, for at least a week. None of Keating's January grievance forms stated that Respondent's conduct breached or was inconsistent with the 1976-1978 con- tract. Respondent's step 2 response stated that "some" of these points "must be considered not grievable," and specified the grievance that Respondent "refused to at- tempt to settle grievances in a fair and equitable manner," but did not specify any others.7 The record as a whole indicates that Keating (who lived with his wife and five children) was complaining, inter alia, that Respondent had refused to permit him to drive to Tanner's Creek in his personal car; had refused to provide him with an individual vehicle for this pur- pose and for his personal use while he was there; had given him the Tanner's Creek assignment notwithstand- ing his protest with a reasonable excuse; had threatened him with discipline if he refused the assignment, but re- fused to outline what discipline he faced; had refused to agree to compensate him for "labor expenses acquired at [his] home due to [his] not being at [his] home because of company business"; had refused to agree to pay for more than three meals a day eaten by him while out of town, although he habitually ate four meals while at home; had "refused to make arrangements to complete the job in the shortest possible time to shorten length of time crew required to stay away from home"; had refused to supply him with "entertainment money while out of town on company business"; and had "refused to allow reasonable phone calls home" (a grievance that Respondent rejected on the basis of an alleged side agreement with the Union that allegedly was not part of the contract). 8 Keating's January grievance also alleged that Respondent "has changed my place to repprt to work. Which in reality is a headquarters change and they failed to negotiate this change," and that Respondent had refused to permit him to drive back and forth eVery day between headquarters and Tanner's Creek on company time. At step 2, Re- spondent responded to these grievances partly as follows: [Alt any time you are sent away from headquarters to work . . . your normal reporting place is changed for that particular job. This has always been recognized and is provided for under Article XIX of the Working Agreement. This article was negotiated to cover this situation. the company 7 The step 2 answer further stated, "You filed a grievance in the First Step, if you were not satisfied you can follow the procedure as outlined in the working Agreement and continue it to its final conclusion." 8 As previously noted, Labor Relations Supervisor Hitzeman's Septem- ber 25, 1978, response to the Union's request for meetings to modify the Marian-Muncie contract not only stated that the collective-bargaining agreement would terminate effective November 30, 1978, but also ex- pressed a desire to "terminate," inter alia "any side agreements or under- standings and agreements in accordance with" the "Period of Con- tract" clause in the bargaining ageement cannot negotiate a separate contract or a specific ar- ticle with you to cover a job that has been assigned to you. The Working Agreement is negotiated with the Bargaining unit and applies to all persons repre- sented by it. This article has been in the Working Agreement since the IBEW started representing the company employees in 1953. . . . . [I]t is quite inconceivable that anyone would sug- gest that a normal work day would consist of driv- ing to Tanners Creek, work eight hours, and then drive back to Muncie each day for the entire week. This not only would be uneconomical, but would raise the question of how proficient you would be on the job. Again, Article XIX of the Working Agreement was negotiated to provide for your wel- fare under the conditions of this type of assignment. Article XIX of the 1976-1978 agreement provided as follows: TRAVELING AND LIVING EXPENSES Section 1. When in the performance of Company work, an employee is sent away from headquarters and is obliged to be away over night, the lodging and meals for such employee will be furnished by the Company. Section 2. If an employee, upon request of the Company is transferred and it is necessary for him to move from his place of residence to the new place of employment, the Company will defray the moving expenses of his household effects to the new place of employment. In seeking to rebut at step 3 Respondent's step 2 rejec- tion of Keating's grievances regarding driving to and from Tanner's Creek daily, the alleged change in head- quarters, and "entertainment money," Keating asserted that article XIX was designed for "one night or moving. Not days and nights or weeks." Further, Keating alleged that concerning the Tanner's Creek assignment, "the Company was demanding my time for 24 hours a day for five days and was only willing to pay me for eight hours a day for five days. . the Company by taking this pro- cedure violated Art. V Section 1 and la, Section 2b-2d and Section 5a and 5b" of the 1976-1978 agreement. These provisions call for employee work schedules of not more than 8 hours in any 24-hour period, require overtime premium pay for all hours worked beyond such limitation, and require rest periods for employees who work more than 16 hours during any 24-hour period. Keating's own step 4 contentions were essentially the same as his step 3 contentions. However, during the fourth-step discussion, the Union relied only on article XIX, section 1. Goddard credibly testified that the Union felt that if Respondent were to provide redress for those issues that were obviously covered by that article, the parties would be well on their way to addressing the others, "so we concentrate our discussion in that meeting on that particular article." By memorandum dated June 18, 1979, Labor Relations Supervisor Hitzeman issued a step 4 rejection of all of 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Keating's grievances. Hitzeman stated that "Article II of the Working Agreement, which expired on November 30, 1978, provided that in the exercise of its functions of management, the Company shall have the right to assign work. . . . This would include the assignment of work on out-of-town assignments." Hitzeman further stated that Keating's request for permission to use his personal car on such work, for overtime pay, for negotiation of "headquarters change," for permission to drive between headquarters and Tanner's Creek on company time, for labor expenses acquired at his home due to not being there because of company business, for transportation (use of car) while on company business out of town, and "entertainment money" are "over and above what is re- quired" by article XIX, section 1, of the "Working Agreement," which Hitzeman described as "expired." 2. South Bend grievance; Stone's grievance following his transfer (Grievance TB-79-02) The divisions covered by the South Bend agreement include the South Bend division and the Twin Branch generating division. On January 24, 1979, employee Ralph 0. Stone, who at all material times was in the South Bend unit, filed a grievance contending that be- cause of the circumstances regarding his transfer from the South Bend division to the Twin Branch division, he was entitled to be paid at the overtime rate for the first 8 hours of work for which he had been scheduled in the latter divsiion. Stone's grievance form alleged that he had been initially advised that he would be transferred effective 4 p.m. on Wednesday, January 10; had not been advised until 8:50 a.m. on Monday, January 8, that his transfer was effective at 8 a.m. on January 8; and, ac- cordingly, had been an hour and a half late for work at the Twin Branch division on January 8. Stone's griev- ance form relied on "Article VI Section 5 pages 30-31," which provides, inter alia: If any employee has his shift . . . changed with less than twenty-four (24) hours' notice before the beginning of the changed shift . . . he shall be paid one and one-half (1-1/2) times his regular straight time rate. . . for the hours worked on the first day of such changed shift. . . . If twenty-four (24) hours or more notice is given before the changed shift. . . is to begin, an employ- ee whose shift . . is so changed shall be paid his regular straight time rate . . . during the time he works on such changed shift. . . . Respondent rejected this grievance at step 2 on the ground that Respondent did not "violate" the "Working Agreement." By the time Stone's grievance reached the fourth step, the dispute had boiled down to the factual question of whether Stone had initially been advised to report to Twin Branch on Monday, June 8, at 8 a.m., or on Wednesday, June 10, at 4 p.m.; and the requested relief consisted of an hour and a half's pay at straight time. By memorandum dated October 4, 1979, Labor Relations Supervisor Hitzeman found that Stone had been told to report on Monday morning, and denied the grievance at the fourth step on the ground that "There was no provi- sion in the working agreement, which expired on Octo- ber 31, 1978, to pay employees for time not worked under such circumstances." 3. Fort Wayne grievances a. Davis' grievance regarding leadman pay (Grievance FW 79-05) On March 8, 1979, Fort Wayne unit employee Jeffrey Davis, a line mechanic A, filed a grievance complaining of Respondent's refusal to pay him top line mechanic A pay for the hours he worked as leadman on February 20, 1979. His grievance alleged, "Past practice men have been top linemen in position to run truck." Management rejected this grievance at the second step on the ground that on this occasion, it was not "practical" to assign the leadman's job to a senior line mechanic A. At the third step, management rejected the grievance on the ground that although a top-rate line mechanic A would be assigned to such work "Under normal condi- tions," performance of leadman's duties "was one of the contributing factors in determining the current labor grade assigned to the A classification. In addition, the rate of pay within a classification is divided into time steps as outlined in the wage agreement. This wage agreement does not provide for paymg higher steps in a rate range until the employee has completed six months." At the third and fourth steps, the Union relied on the contractual wage agreement and on other contract provi- sions whose identity is not shown by the record. 9 Labor Relations Supervisor Hitzeman rejected the grievance at the fourth step on the following grounds: [Y]ou base your contention on past practice and discussions which were held in negotiations. . . . . While it's true that, in the past, Line Mechanic A's who had reached the maximum were utilized as "lead-men" there was nothing in the expired work- ing agreement, nor is there in any other agreement, that precludes the Company from assigning a Line Mechanic A being paid below the maximum the re- sponsibility of "lead-man" on a two-man crew. The Company explained in negotiations that the respon- sibility of being a "lead-man" had been considered in establishing the job rate for Line Mechanic A. This means all of the steps of grade 12, the grade in which the "A" job has been assigned and includes all "A" mechanics. At no time in negotiations did the Company say that it applied only to the maxi- mum rate or that only Line Mechanic A's who are being paid the maximum would be assigned as "lead-men." 9 Art VII, sec 17, of the bargaining agreement called for Respondent to establish, for job classifications that were substantially changed during the period of the agreement, wage rates in "proper relationship to other existing job rates" in the unit INDIANA & MICHIGAN .ELECTRIC CO. 71 b. Meter readers' grievance regarding assignment of routes (Grievance FW 79-08) On March 26, 1979, 10 meter readers in the Fort Wayne unit filed a grievance alleging that Respondent was violating the "safety policy" and "various safety rules" by failing to supply each meter reader with his own "set of books." Respondent's responses to this grievance show that the meter readers were in substance asking that each be assigned to his own meter-reading route, with the employees to choose their own routes in the order of seniority, instead of being rotated between routes as was the existing practice. These responses fur- ther show that the meter readers sought this change on the ground that it would cause them to travel less and to be more aware of potential hazards in particular loca- tions. At the third and fourth steps of the grievance proce- dure, the Union alleged that Respondent was violating contract article II, which is captioned "Responsibilities of Management" and states, inter alia, "except as other- wise provided in this agreement, the Company in the ex- ercise of its functions of management, has rights which include, but are not limited to, the right to decide the • . . methods, safety rules, direction of employees, as- signment of work, equipment to be used." The Union al- leged primarily that Respondent was not properly ad- ministering safety rules. The grievance was rejected at the first and second step on the ground that the "Cus- tomer Accounting Manual [which is not in the record] specifies the alternation of the meter reading route as- signments." During both the third and the fourth steps of this grievance, the Union stated that the meter readers wanted this change primarily for safety reasons. Manage- ment's third-step answer, which rejected the grievance, stated that there "could be" some safety advantages in permanent assignment of routes, ftirther stated that it was "important that a rotation of some fashion continue," and suggested an arrangement under which each employee would rotate between three or four routes. The Union requested a fourth-step meeting "as soon as possible" because "the well being of all the meter readers in the Fort Wayne Division would continue to be jeop- ardized until this grievance was resolved." Labor Rela- tions Supervisor Hitzeinan's fourth-step response stated that the Union was relying on certain provisions in the "Safety Manual," which is not in the record. Hitzeman rejected the grievance at the fourth step, on the ground that there was a real question whether the proposed change would make the job safer. c. Meter readers' grievance regarding oral warning (Grievance FW 79-11) On April 23, 1979, four meter readers in the Fort Wayne unit filed a grievance alleging that they had re- ceived "improper discipline" on April 17, 1979, when they received an oral warning for failing to read enough meters on a particular day. The employees contended that their work had been interfered with by inclement weather. The grievance was rejected in the first and second steps on the ground, inter alia, that oral warnings are not normally considered discipline. At the third- and fourth-step grievance meetings, the Union contended that these warnings violated article II of the agreement (which states that Respondent has the right to discipline employees for "proper or legitimate reasons") and other contract provisions whose identity is not shown by the record." The grievance was rejected at the third step on the ground that "oral warnings are normally used to inform employees of substandard per- formance and are intended to draw their attention to the need for corrective action. In this instance, your Supervi- sor judged your performance to be below reasonable ex- pectation." At the fourth step, Labor Relations Supervi- sor Hitzeman rejected the grievance on the ground that the oral warnings were justified by the employees' work performance. Hitzeman's letter further stated, "Oral warnings are defined on page 26 of the Employee Hand- book [which is not in the record] as follows: 'Oral warn- ings may be given by a supervisor as a matter of infor- mation and training, but such warning will not normally be considered as disciplinary action.' With this in mind I believe the purpose of the oral warning was accom- plished." d. Grievance regarding supervisor's acquisition of employees' telephone number (Grievance FW 79-12) On April 23, 1979, a Fort Wayne unit employee, with an androgynous name but inferentially female, filed a grievance alleging that her supervisor (who is male) had surreptitiously acquired her telephone number and used it without permission to harass her. Among other things, she asked for reimbursement for the cost of changing her telephone number. At the first step, management stated by memorandum dated May 1 that it considered the matter resolved because on April 2, her supervisor had returned her phone number and given her a "verbal apology." By memorandum to her dated May 9, her su- pervisor memorialized this action. At the third- and fourth-step meetings, the Union con- tended that Respondent had violated article VI, section 7 of the 1976-1978 agreement (in which Respondent un- dertook not to discriminate against any employee be- cause of sex) and other contract clauses whose identity is not disclosed by the record. Management rejected the grievance at the third step on the ground that her super- visor had apologized and returned the number; that there was no evidence he had circulated it; and that the only call from her supervisor to her had consisted of an in- quiry, on a day when she had overslept, about whether she was coming in. At the fourth step, Hitzeman rejected the grievance on substantially the same grounds, and stated that there was no evidence that her receipt of "harassment-type" calls was due to her supervisor's having her telephone number. '° Art. VI, sec 2 of the bargaining agreement limited Respondent's nght to require employees to do outdoor work in inclement weather. 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD E. Analysis and Conclusions 1. Union's request for application of Kingsport Publishing In Kingsport Publishing Co., 165 NLRB 694 (1967), enf. denied 399 F.2d 660 (6th Cir. 1968), the Board found that an employer violated Section 8(a)(5) and (1) of the Act by refusing to honor, concerning grievances com- plaining of employer conduct after the expiration of a collective-bargaining contract and before the effective date of a new one, the grievance and arbitration proce- dure set forth in the expired agreement. In so holding, the Board found applicable to such procedures the statu- tory restrictions (e.g., NLRB v. Katz, 369 U.S. 736 (1962)) on an employer's right unilaterally to alter any other employment conditions which are mandatory sub- jects of collective bargaining. Shipbuilders (Bethlehem Steel) v. NLRB., 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964). The Union's brief requests me to sustain the complaint on the basis of the theory enunciated in Kingsport. How- ever, as the Union concedes, the Board later receded in part from Kingsport. In Hilton-Davis Chemical Co., 185 NLRB 241 (1970), the Board held that although an em- ployer is ordinarily obligated during a contractual hiatus to honor the grievance procedure generated by the ex- pired contract, he is not obligated to honor the arbitra- tion procedure so generated. 11 In requesting me to over- rule Hilton-Davis and revert to the Board's position in Kingsport, the Union asks me to act beyond my proper sphere as an administrative law judge. Insurance Workers (Prudential Insurance), 119 NLRB 768, 772-773 (1957), enf. denied 260 F.2d 736 (D.C. Cir. 1958), affd. 361 U.S. 477 (1960).12 2. Respondent's abandonment of "initial arbitration" Accordingly, the first question to be considered by me is whether "initial arbitration" constituted an arbitration procedure within the meaning of Hilton-Davis, or merely constituted a step in the grievance procedure. I disagree with Respondent's contention that this issue is disposed of by the fact that the "initial arbitration" provisions im- mediately follow the language, "such arbitrable griev- ance may be submitted to arbitration in the following manner." Surely, Respondent would not be privileged to " See also Newspaper Printing Corp, 221 NLRB 811, 821 fn. 1(1975), Fawcett Printing Corp, 201 NLRB 964, 973 fn 41 (1973) 12 The trial examiner's Kingsport decision, adopted by the Board, stated (165 NLRB at 696), "It would, of course, seem totally inconsistent to hold that a grievance procedure would survive at contract but the arbi- tration clause, the final and binding part of that procedure, would not" Although I express no views as to the relative merits of Kingsport and Hilton-Davis, I do suggest that the Union's attack on Hilton-Davis does it somewhat less than Justice Although it is true that every term of em- ployment established by a collective-bargaining agreement is ' based on mutual consent, regarding some such terms (e g., wages) the employer has the power and under some circumstances the right to set them unilat- erally during a contractual hiatus However, an employer would prob- ably have some practical difficulty in unilaterally establishing either a grievance or an arbitration procedure with respect to a union-represented unit, and Hilton-Davis questions his right unilaterally to establish a griev- ance procedure at any time (185 NLRB 242-243) Cf American Vitrified Products Ca, 127 NLRB 701, 716-719 (1960), Turbodyne Corp, 226 NLRB 522, 524 (1976) disregard during a contractual hiatus a contractually gen- erated procedure that stated that the first step of the "ar- bitration procedure" is the presentation of a grievance, within an hour after the complained-of conduct, by the grievant and his steward to the grievant's immediate su- pervisor, who is to dispose of the grievance in the first instance. I agree with the General Counsel and the Union that for Hilton-Davis purposes, "initial arbitration" constituted a part of the grievance procedure. Hilton- Davis stated that the arbitration procedure is character- ized by "third party determination of unresolved issues" (185 at 242). Concerning the parties' relationship in the instant case, "initial arbitration" bears no resemblance to such third-party determination; rather, the two "initial arbitrators" are merely representatives of the respective parties (in practice, they were always a union officer and Respondent's personnel director), and the grievance cannot be resolved during "initial arbitration" if they are unable to agree on how to dispose of it. Cf. S & W Motor Lines, 236 NLRB 938, 946, 949 (1978); 13 American Sink Top Co., 242 NLRB 408 (1979). The uncontradicted evidence establishes that on vari- ous dates between November 3, 1978, and January 2, 1979, Respondent advised the Union that it would no longer follow the procedure for "initial arbitration" set forth in the 1976-1978 contracts. Moreover, on various dates between July and October 1979, Respondent re- fused to process the grievances through the "initial arbi- tration" procedure. I find that by thus unilaterally alter- ing the existing grievance procedure, Respondent violat- ed Section 8(a)(5) and (1) of the Act. Pease Co., 251 NLRB 540 (1980); see also Chicago Magnexium Castings Co., 240 NLRB 400, 406-407 (1979), enfd. 612 F.2d 1028 (7th Cir. 1980); Bethlehem, supra, 320 F.2d at 620. For the reasons stated infra, part II,D,3, I disagree with Re- spondent's contention that the subject matter of some of these grievances excludes them from "initial arbitration," whose scope is coterminous with the scope of arbitrable matters. Because there is no claim or evidence that the parties ever reached an agreement eliminating "initial ar- bitration" about these particular grievances, ,Respond- ent's prior presentation of a proposal for elimination of "initial arbitration" from the new contract (which pro- posal the Union accepted on a ,date not shown by the record) did not affect any statutory duty imposed on Re- spondent to proceed with "initial arbitration" about the kinds of grievances encompassed by the old contractual provisions therefor (see supra fn. 12). For this reason, and because (under Hilton-Davis) Respondent's duty vel non to participate in the grievance procedure is con- trolled by different considerations than is Respondent's duty vel non to participate in the arbitration procedure, I do not agree with Respondent's mootness claim with re- spect to the appropriate classification to be accorded "initial arbitration." 13 In the court of appeals the employer challenged portions of the S W order that were adverse to it, and the court approved part of the chal- lenged 'portions of the order (621 F 2d 598 (4th Cir 1980)) The court was not asked to and did not rule on the parts of the Board's Decision and Order that are discussed herein INDIANA & MICHIGAN ELECTRIC CO. 73 3. Respondent's abandonment of arbitration The remaining provisions of the arbitration clauses are unquestionably arbitration provisions within the meaning of Hilton-Davis. On the same day that Hilton-Davis issued, the Board found in another case that an employer violated Section 8(a)(5) and (1) by failing to honor the arbitration provisions of an interim agreement reached by the parties after the expiration of an earlier collective- bargaining contract. Taft Broadcasting Co,, 185 NLRB 202 (1970,) enfd. 441 F.2d 1382 (8th Cir. 1971). Thereaf- ter, as to the appropriate standards for determining whether the parties had agreed to extend a bargaining agreement (including its arbitration provisions) beyond the expiration date set forth in the document, the Board held that the record must contain "affirmative evidence . . . that the agreement had been . . . extended beyond its stated termination date." Long Transportation Co., 191 NLRB 202 (1971). In 1977, the Supreme C,om t issued its decision in Nolde Bros. v. Bakery Workers Local 358, 430 U.S. 243 (1977). Nolde held that an employer was obligated to ar- bitrate, in the manner set forth in an expired collective- bargaining agreement, a union claim for severance pay that was called for by that agreement but to which the employees became entitled, if at all, only when the plant shut down several days after the cancellation of the con- tract. Respondent's brief contends that Nolde "was meant to apply solely to rights earned and accrued during the term of the contract but whose actual enjoyment is de- ferred until after contract termination" citing Steiner Tru- craft, 237 NLRB 1079, 1081 (1978), enfd. 605 F.2d 1197 (3d Cir. 1979); 14 and Rochdale Village v. Teamsters Local 80, 605 F.2d 1290 (2d Cir. 1979) (holding that Nolde did not alter the importance of the termination question in the case before the court of appeals, because the union attack on employer subcontracting after the bargaining agreement allegedly expired was not analogous to the Nolde claim that the contract gave employees a "vested right to severance pay"). 1 a However, in Goya Foods, 238 NLRB 1465, 1466-1467 (1978), the Board stated: In Nolde the Supreme Court adopted the rule that the contractual duty to arbitrate disputes aris- ing out of or during the term of a collective-bar- gaining agreement extends beyond the date of expi- ration of that agreement, unless negated expressly or by clear implication. The Court reasoned that the dispute therein was "over an obligation argu- ably created by the expired agreement" and found that "the fact that the Union asserted its claim to severance pay shortly after, rather than before con- tract termination did not control the arbitrability of that claim." The Court recognized that the arbitra- tion duty is a creature of the collective-bargaining 14 However, the actual result in Steiner Trucraft would be unaffected by whether Nolde's scope was so limited Steiner Trucraft was signed by Members Jenkins, Murphy, and Truesdale. 16 Respondent also cites Milwaukee Typographical Union No. 23 v. Madison Newspapers, 444 F Supp. 1223 (W D Wise, 1978), affd. 622 F 2d 590 (7th Cir. 1980). However, no contention was made in that case that any of the grievances with respect to which the Court ruled "arose" under the expired contract. agreement and that a party cannot be compelled to arbitrate any matter in the absence of a contractual obligation to do so, but it nevertheless found that the duty extends postcontract. It reasoned that such conclusion was derived from the parties' intent in agreeing to arbitrate differences arising under the contract and from the reasons for the national labor policy favoring arbitration over judicial resolutions of disputes, including the parties' confidence in the arbitration process, the arbitrator's presumed special competence in matters concerning bargaining agree- ments, and the parties' interest in obtaining a prompt and inexpensive resolution of their disputes. The Court stated: The parties must be deemed to have been con- scious of this policy when they agree to resolve their contractual differences through arbitration. Consequently, the parties' failure to exclude from arbitrability contract disputes arising after termi- nation, far from manifesting an intent to have ar- bitration obligations cease with the agreement, af- fords a basis for concluding that they intended to arbitrate all grievances arising out of the contrac- tual relationship. In short, where the dispute is over a provision of the expired agreement, the presumptions favoring arbitrability must be negat- ed expressly or by clear implication. . . . . In sum, the Court in Nolde found that the duty to arbitrate extended beyond the contract term if over a matter covered by or created by the contract 16 . . . . The actual question presented in Goya Foods was whether employees engaged in protected concerted ac- tivity when they struck, after the expiration of a collec- tive-bargaining agreement with a no-strike clause, to pro- test preexpiration discharges, when the only permissible means of settling the dispute over such discharges was arbitration over the resulting grievances that had been filed. A majority of the Board found that the strike was unprotected because (supra at 1467): [The no-strike clause in the contract herein has co- terminous application with that duty to arbitrate. In our view, the words "during the life of this agree- ment" contained in the no-strike clause do not con- stitute express negation that the duty not to strike should continue with the duty to arbitrate. The agreement "lives" on in the duty to arbitrate; so should the duty not to strike live on to the extent of the duty to arbitrate over issues created by or aris- ing out of the expired agreement. We believe that our conclusion is consistent with the strong national policy favoring arbitration of labor disputes. Furthermore, it would indeed be 16 Members Jenkins, Murphy, Penello, and Truesdale joined in the ma- jority opinion Chairman Fanning's concurrence does not appear to ques- tion the majority opinion's interpretation of Nolde regarding the duty to arbitrate Cf. infra at fn 17 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD anomalous if an employer who would be contrac- tually bound to arbitrate a certain dispute after con- tract expiration could still be subjected to economic pressure that would be protected.17 At least arguably, Goya Foods may be consistent with Respondent's somewhat narrow reading of Nolde. How- ever, in American Sink Top, supra, 242 NLRB 408 (1979), the Board" required an employer to arbitrate in accord- ance with the provisions of an expired contract a griev- ance regarding an employee's postcontract discharge that was claimed to "violate" the provisions of that contract. The Board said that in NoIde, supra at 408: [T]he Supreme Court held that, where the parties to a collective-bargaining agreement have agreed to subject certain matters to a grievance and arbitra- tion process, "the parties' obligations under their ar- bitration clause survive[s] contract termination when the dispute [is] over an obligation arguably created by the expired agreement." Id. at 252. That obligation is not terminated merely by the parties' failure to expressly cover this situation. As the Court stated generally in Nolde, in the "absence of some contrary indication, there are strong reasons to conclude that the parties did not intend their ar- bitration duties to terminate automatically with the contract." Id. at 253. . . . . The grievance's basis is "arguably"—at least—the contract, and there is no reason to conclude that the parties had intended the arbitration provisions to end with the contract's term. In light of Nolde, we shall order the arbitration of the discharge . . . if appropriate. Respondent contends that the Board committed an "egregious error" in American Sink by applying NoIde to a grievance involving a postcontract discharge. Of course, I have no power to overrule American Sink. Pru- dential, supra, 119 NLRB at 772-773. Moreover, Ameri- can Sink's interpretation of Nolde's scope is rather similar to the approach of several Federal courts. Thus, in Fed- erated Metals Corp. v. Steelworkers, 648 F.2d 856 (3d Cir. 1981); and Steelworkers v. American Smelting Co., 648 F.2d 863 (3d Cir. 1981), a divided Court, relying on Nolde, (1) upheld an arbitration award requiring weekly "security payments," which the bargaining agreement af- forded to employees after their layoff, for a period after the agreement had expired and the plant had shut down; and (2) required an employer to arbitrate (pursuant to a pension-agreement clause that subjected to arbitration a dispute over a pension claimant's number Of years of continuous service) such a dispute with respect to em- 17 Chairman Fanning took the position that NoIde is inapplicable to de- termining whether statutory rights have been waived, and that to con- clude that the no-stoke clause extended beyond the life of the contract would be inconsistent with the requirement that an effective waiver of statutory rights must be clear and unmistakable. He found the strike to be unprotected because it later acquired the additional purpose of seeking to compel unlawful recognition 238 NLRB at 1468-1469 18 Chairman Fanning and Members Jenkins and Murphy ployees who had accrued sufficient continuous-service credits for pension eligibility if, but only if, their service between the pension agreement's expiration and the plant shutdown were to be included. The Court stated (Feder- ated Metals, supra, 648 F.2d at 860), "We do not believe that the somewhat esoteric determination that the disput- ed right to a particular benefit has vested or accrued should control the decision whether the duty to arbitrate the dispute survives contract termination. . . . It is not necessary that the disputed right have vested because there is nothing to prohibit the parties from agreeing that certain benefits might accrue after the contract has ex- pired." See also Piano Workers Local 2549 v. W. W. Kim- ball Co., 379 U.S. 357 (1964), revd. 333 F.2d 761 (7th Cir. 1964), which Nolde described (430 U.S. at 252) as holding arbitrable a dispute that arose after the life of the agreement over seniority rights under the agreement; Garment Workers Local 589 v. Kellwood Co., 592 F.2d 1008 (8th Cir. 1979) (involving a claim br pension bene- fits to which employees became entitled, if at all, before the employer entered into an agreement; "Under Nolde, whether a dispute arises or rights accrued during the ef- fective period of a labor contract does- not necessarily determine arbitrability"); Textile Workers v. Columbia Mills, 471 F.Supp 527 (N.D.N.Y. 1978); Bohack Corp. v. Truck Drivers Local 807, 431 F.Supp. 646, 652-653 (E.D.N.Y. 1977), affd. on opinion of court below 567 F.2d 237 (2d Cir. 1977), cert. denied 439 U.S. 825 (1978); Hayes v. National Football League, 469 F.Supp. 252 (C.C. Calif. 1979); Service Employees Local 6 v. University Manor Convalescent Center, 105 LRRM 3499 (D.C. Wash. 1980). Further, General Warehousemen & Employ- ees Local 636 v. C Penney Co., 484 F.Supp. 130 (W.D. Penn.), expressly noted and did not question the Board's application of Nolde to a postcontract discharge (the basis of the grievance before the district court) and went on to find that the Nolde presumption had been over- come in the case before the Court itself. Respondent does not appear seriously to question that American Sink, if still viable, calls for using Nolde stand- ards to determine whether the arbitration provisions of the 1976-1978 contracts were applicable to the griev- ances here. However, Respondent contends that Ameri- can Sink has been overruled by Cardinal Operating Co., 246 NLRB 279 (1979). 19 Because neither the decision of Administrative Law Judge Robert M. Schwarzbart nor the decision of the Board in Cardinal Operating cites American Sink, any such overruling would have to be sub silentio. Mcireover, I perceive no inconsistency be- tween the reasoniing of Judge Schwarzbart (whose deci- sion was adopted by the Board, at least so far as material here) and American Sink. Since Hilton-Davis, whether an employer has a duty to arbitrate grievances which arise during a contractual hiatus has depended on whether he had agreed to an arbitration obligation. This approach was in no respect changed by either Nolde or American Sink, both of which merely held that regarding disputes arising over provisions of the expired contract, there is a presumption that when agreeing to include an arbitration 15 Decided by Members Jenkins, Murphy, and Ttuesdale INDIANA & MICHIGAN ELECTRIC CO. 75 clause in a contract, the contracting parties did not intend their arbitration duties to terminate automatically with the contract, and that such a presumption must be negated expressly or by clear implication. In Cardinal Operating, Judge Schwarzbart addressed himself solely to the question of whether the parties had agreed, shortly before the expiration date on the face of the contract, to extend the entire contract, including but not limited to the arbitation clause. In finding that they had not so agreed, Judge Schwarzbart relied on, inter alia, a provi- sion therein (not contained in any of the instant bargain- ing agreements) that the contract incorporated the full understanding of the parties and no written or oral un- derstandings or practices would be recognized in the future unless committed to writing and signed by the parties. Furthermore, Judge Schwarzbart cited S. W. Motor Lines, supra, 236 NLRB 938 (1978), in which Ad- ministrative Law Judge Hutton S. Brandon, whose deci- sion in this respect was affirmed by the Board, cited and applied Nolde in finding that the presumption of arbitra- bility was negated by "clear implication"—more specifi- cally, by a contract provision that specifically limited to the duration of the contract the obligation to participate in proceedings which were a necessary step in the arbi- tral process. 236 NLRB at 946, 949-950. It is true that this analysis was an alternative ground for Judge Bran- don's conclusion that the employer was not bound to ar- bitrate grievances that arose after the contract had ex- pired, and that Judge Schwarzbart relied on that portion of Judge Brandon's analysis that was solely based on Hilton-Davis and Taft Broadcasting. However, this cir- cumstance is far from establishing that Judge Schwarz- hart and the Board held Nolde irrelevant to a claim that a contract as originally agreed to called for arbitration of postcontract grievances, and held accordingly that Amer- ican Sink's reliance thereon was erroneous. The next question to be considered is whether the in- stant 1976-1978 contracts are to be read as calling for application of the arbitration procedure after the respec- tive expiration dates set forth in those agreements. Nolde and American Sink call for the presumption that such procedures are to be so read. I conclude that Respondent has failed to rebut this presumption. Respondent largely relies on the fact that all the con- tracts in question contain termination clauses (without specifically including or excepting arbitration) and also restrict the arbitration procedure to grievances that in- volve "interpretations or applications of a specific term or terms of this Agreement." However, the problems ad- dressed by Nolde and its progeny do not even arise unless the contract has a termination clause, whose date has passed, and contains no language affirmatively stat- ing that the arbitration provision remains in effect. Ac- cordingly, the clauses cited by Respondent cannot be read as rebutting, either expressly or by clear implica- tion, the presumption of arbitrability. 2° Moreover, 20 For the same reasons, the presumption is unaffected by the Union's letter to Respondent, dated November 27, 1978, that "there was a bind- ing contract in existence [with respect to the South Bend unit] between January 1, 1978 and November 1, 1978"; and the Union's letter to Re- spondent, dated May 4, 1979, that "there were binding contracts in exist- ence . between January 1, 1978 and December 1, 1978; December 16, "when the parties have agreed to a narrow arbitration clause, the duty to arbitrate survives if the dispute is over one of the specified arbitrable subjects and arises under the expired agreement." Federated Metals, supra, 107 LRRM at 2275. I note that the parties expressly pro- vided that certain clauses other than the arbitration clause would not be coterminous with the rest of the contract. 21 Respondent further asserts that "the no-strike clause, the quid pro quo for the arbitration clause, was not continued." However, Goya, supra, 238 NLRB at 1466-1467 (not cited in Respondent's brief) holds in effect that the no-strike obligation does continue regard- ing hiatus grievances rendered arbitrable by Nolde.22 Moreover, during the negotiations that led up to the 1979-1981 contracts, the Union never told Respondent that the Union had the right to strike, and at one time informed Respondent that the Union had no intention of going on strike. Further, Respondent relies on its own action in giving the Union notice, during the negotiations that immediately preceded the hiatus and again immedi- ately after the 1976-1978 contracts expired, that arbitra- tion would not continue. However, such statements by Respondent in late 1978 and early 1979 fail to show that such was the intent of both parties in 1976, when they signed the agreements. Moreover, the Union replied to management's written notices to this effect by filing an unfair labor practice charge attacking Respondent's an- ticipatory refusal to arbitrate, and replied to such a state- ment from Personnel Manager Willmore (two-thirds of the way through a 45-minute speech about the status of negotiations) by stating, in substance, that responding to threats was a waste of time and the parties should con- centrate on reaching a new agreement. Such union re- sponses can hardly be interpreted as acquiescence. As previously found, Personnel Manager Willmore ad- vised the Union before the 1976-1978 agreements were entered into that Respondent would not agree to arbi- trate grievances that arose after the expiration of the 1973-1975 agreements (on which the Union stated that if the old agreement expired before a new agreement was reached, all the terms and conditions of the previous agreement would continue as they were)." Respondent's brief does not even refer to this incident, much less argue that Willmore's remarks evinced an intention to limit the effective period of the 1976 arbitration agmements in the 1978, and January 1, 1979 for the Marion-Muncie, Fort Wayne, and Gen- eral Office Units respectively" 25 Thus, the checkoff clauses in all but the South Bend contract pro- vide that the employee's checkoff authorization "shall continue in effect for the duration of this contract, or until receipt by the Company of [the employee's] revocation . or when the employee ceases to be repre- sented by the Union in the Bargaining Unit, whichever occurs earlier." The South Bend contract fails to include the language after the word "revocation." 22 Indeed, at least arguably, this result was specifically called for by the South Bend and General Office no-strike clauses, which provide, "In- asmuch as a grievance and arbitration procedure has been agreed upon, there shall be no strikes . . during the life of this Agreement or exten- sion thereof" Moreover, the preambles to the other contracts recite that their purpose is to facilitate "the peaceful adjustment of differences that arise from time to time" for the benefit of, inter alia, the members of the public to whom Respondent provides electricity as a public utility 23 There is no evidence that the Union ever asked for arbitration of any such 1976 grievances 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD way he was attempting in 1976 to limit the effective period of the arbitration agreements reached in 1973. Moreover, the arbitration clauses in the 1976 contracts are substantially the same as those in the 1973 contracts. Under these circumstances, I conclude that such remarks did not rebut the presumption that the arbitration clauses continued in effect. Regarding most of the hiatus grievances, Respondent has never questioned that their subject matter was within the scope of the arbitration clauses. Respondent's brief raises some question regarding Fort Wayne employee Davis' claim for top pay for the hours he worked as a leadman (supra, part II,C,3,a), but the uncontradicted evidence shows that at the third and fourth steps, the Union relied on the contractual wage agreement and other contract provisions. Respondent's step 2 response to the grievances of Marion-Muncie employee Keating characterized as "non-grievable" his allegation that Re- spondent had "refused to attempt to settle grievances in a fair and equitable manner"; but the contract imposes on the parties the duty to make "an earnest effort . . . im- mediately to settle . . . differences" regarding the inter- pretation and application of the terms of the agreement. Regarding the meter readers' grievance alleging that the existing route assignment system caused safety prob- lems, Respondent's refusal letter asserted that the griev- ance was not arbitrable "due to its subject matter." Re- spondent may have been relying on the fact that the con- tractual "Responsibilities of Management" clause afford- ed Respondent the right to "decide the . . . methods, safety rules, direction of employees, [and] equipment to be used" "except as otherwise provided in this agree- ment." However, the Union did allege that Respondent was violating contract clauses that the Union specified, and Respondent's brief does not question the arbitrability of this grievance. 24 I conclude that it too falls within the contractual arbitration clause. Koppers Co., 73 LA 837, 839 (1979); see generally Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583 (1960) ("An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the ar- bitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage"). I perceive no basis for Respondent's contention that because other contract provisions had expired, in consid- ering the instant grievances "The arbitrator would . . . be left in a no-man's land without map or chart to guide his decision." Both parties attempted during the griev- ance proceedings to resolve the grievances on the basis of such contract provisions, and NoIde and its progeny call for the arbitrator to do the same. I note, moreover, that all the grievances here were based on clauses in the 1976-1978 contracts that were 54 Labor Relations Supervisor Hitzeman's July 1979 fourth-step re- sponse to this grievance stated that the Union was relying on certain pro- visions in the "Safety Manual" The January 1979 charge herein alleged, inter aim, that Respondent had violated the Act by "claiming safety as [its] exclusive responsibility and refusing to allow the Union to be a party to negotiating of safety rules" (item 6) The Instant complaint contains no such allegation also included in the 1979-1981 contract. 26 Indeed, as is not unusual in cases of longstanding bargaining relation- ships, the old (1976-1978) contracts were so similar to the new (1979-1981) contracts that the same would likely have been true regarding a significant proportion of all hiatus grievances. Respondent was unquestionably under a statutory duty to maintain, during the contrac- tual hiatus, such employment conditions generated by the 1976-1978 contracts and called for by the 1979-1981 contracts. By complying with this statutory obligation, Respondent not only would respect employees' statutory right to be consulted, through their bargaining represent- ative, about changes in their employment conditions,26 but also would further the consummation of new and complete contracts by enabling the negotiating parties to concentrate on matters really at issue. However, whether contractually generated employment conditions are in fact maintained during a contractual hiatus—indeed, whether the employer is able to maintain them—may well depend on whether there has been a change in the means by which the contract clauses are interpreted during this period. During the effective period of a con- tract with an arbitration clause, the final interpreter of the parties' obligations thereunder is the arbitrator. If the arbitration clause is ineffective on the expiration of the rest of the contract, whether contractually generated em- ployment conditions have been maintained must be de- termined by the Board and the courts, , whose approach to interpreting the contract may well significantly differ from the approach which the arbitrator took, and which the parties (when agreeing to both substantive contract clauses and an arbitration clause) expected him to take. See Nolde, supra, 430 U.S. at 252-254. 27 Furthermore, on occasion the most honest employer will likely treat employees somewhat differently, and the most honest employer and union grievance representatives will likely make somewhat different judgments, when they know that arbitration is unavailable. (The same is true, of course, where the union would be the object of a possi- ble grievance)" In short, no matter how conscientious 25 In fact, with one possible exception (supra fn 24), there is no evi- dence that anyone ever proposed changing any of such clauses. 26 Katz, supra, 369 U S at 742-747, Bethlehem, supra, 320 F 2d at 617, 621-622; Central Illinois Public Service Co., 139 NLRB 1407, 1415-1417 (1962), enfd 324 F 2d 916 (7th Cir 1963). 27 The Fort Wayne contract indicates on its face that the arbitrator's decisions constitute precedent regarding how the contract is to be read More specifically, the disposition made of an unappealed grievance "shall be considered dropped without prejudice or precedent" (Art IV, sec. 1(d).) 28 For example, the Keating grievances regarding payments during his January 1979 Tanner's Creek assignment, which lasted at least a week, largely involved a 1976-1978 contract provision that (according to Re- spondent) had been in all Marion-Muncie union contracts since 1953, which was included in the 1979-1981 contract, and which (so far as the record shows) was not discussed during the negotiations leading up to the 1979-1981 contract Although I do not suggest that Respondent's in- terpretation of these provisions was advanced in bad faith or even errone- ous, neither is this interpretation self-evident Accordingly, withholding Keating's grievances from the arbitral process might well cause him to receive payments based on a contract interpretation significantly different from what would have been reached if he had been assigned to Tanner's Creek before or after the contractual hiatus INDIANA & MICHIGAN ELECTRIC CO. 77 the parties, maintenance of contractually generated em- ployment conditions may be impossible without the con- tinued availability of the contractually described arbitra- tion procedures. For the foregoing reasons, I find that Respondent vio- lated Section 8(a)(5) and (1) of the Act by advising the Union, on various dates between November 3, 1978, and January 2, 1979, that Respondent was abandoning the ar- bitration procedures set forth in the 1976 contracts. Fur- ther, I find that Respondent violated these statutory pro- visions by stating that it would not arbitrate the griev- ances described supra, part II,D. CONCLUSIONS OF LAW 1. Respondent is 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. The following employees of Respondent constitute respective units appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. (a) All probationary and regular production and main- tenance employees of the Respondent under the supervi- sion of the South Bend and Benton Harbor Divisions having their headquarters within its Elkhart, South Bend, Buchanan, or Benton Harbor Areas and all probationary and regular production and maintenance employees of the Respondent under the supervision of the Twin Branch Generating Division having their headquarters at the Twin Branch Plant, but excluding all administrative employees, part-time employees, temporary employees, office clerical employees, plant clerical employees, tech- nical employees, confidential employees, guards, profes- sional employees, and supervisors as defined in the Act, and all other employees. (b) All regular production, maintenance and distribu- tion employees, including meter readers but excluding all guards, clerical, technical, professional, supervisory em- ployees, part-time, temporary, and probationary employ- ees of the Marion and Muncie Division of the Respond- ent. (c) All employees employed by the Respondent at its Fort Wayne, Indiana Division; but excluding all office clerical employees, all professional employees, and all guards and supervisors as defined in the Act. (d) All production and maintenance employees in the General Office Transmission Construction and Mainte- nance Group of the Respondent including construction employees, Lineman A, B, and C, Lineman Helpers, Driver-Groundmen, and Heavy Equipment Operators. Excluding all office clerical, professional employees, guards, temporary and part-time and supervisory em- ployees as defined in the Act, and all other employees. 4. At all relevant times, the Union has been the exclu- sive representative of each of these units within the meaning of Section 9(a) of the Act. 5. Respondent has violated Section 8(a)(5) and (1) of the Act by engaging in the following conduct. a. With respect to the unit described in Conclusion of Law 3(a): (1) On November 3, 1978, unilaterally abandoning ob- servance of the initial-arbitration procedures set forth in Respondent's 1976 collective-bargaining agreement with the Union. (2) Refusing on October 19, 1979, to process grievance TB 79-02 through initial arbitration. (3) On November 3, 1978, unilaterally abandoning the provisions in Respondent's 1976 collective-bargaining agreement with the Union regarding arbitration by a third-party arbitrator. b. With respect to the unit described in Conclusion of Law 3(b): (1) On December 4, 1978, unilaterally abandoning the observance of the initial-arbitration procedures set forth in Respondent's 1976 collective-bargaining agreement with the Union. (2) Refusing on July 10, 1979, to process grievance MU 79-04 through initial arbitration; and refusing on August 28, 1979, to process grievances MU 78-13, 79-02, and 79-03 through initial arbitration. (3) On December 4, 1978, unilaterally abandoning the provisions in Respondent's 1976 collective-bargaining contract with the Union regarding arbitration by a third- party arbitrator. c. With respect to the unit described in Conclusion of Law 3(c): (1) On December 18, 1978, unilaterally abandoning the observance of the initial-arbitration procedures set forth in Respondent's 1976 collective-bargaining contract with the Union. (2) Refusing on July 31, 1979, to process grievance FW 79-08 through initial arbitration; and refusing on August 28, 1979, to process grievances FW 79-05, 79-11, and 79-12 through initial arbitration. (3) On December 18, 1978, unilaterally abandoning the provisions in Respondent's 1976 collective-bargaining contract with the Urnon regarding arbitration by a third- party arbitrator. d. With respect to the unit described in Conclusion of Law 3(d), on January 2, 1979: (1) Unilaterally abandoning the observance of the ini- tial-arbitration procedures set forth in Respondent's 1976 contract with the Union. (2) Unilaterally abandoning the provisions in that con- tract regarding arbitration by a third-party arbitrator. 6. The foregoing unfair labor practices affect com- merce within the meaning of the Act. THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent be required to cease and desist therefrom, and from like or related conduct. Affirmatively, Respondent will be re- quired to process the grievances in question in the manner specified in the "initial arbitration" procedures contained in the appropriate 1976 contract, and on re- quest, process such grievances under the provisions of the appropriate 1976 contract regarding arbitration by a third-party arbitrator. In addition, Respondent will be re- quired to post appropriate notices. [Recommended Order omitted from publication.]