Columbus And Southern Ohio Electric Co.

144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Columbus and Southern Ohio Electric Company and International Brotherhood of Electrical Work- ers Local 1466, AFL-CIO. Case 9-CA-18607- 3 15 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS Upon a charge filed on 11 August 1982 by the International Brotherhood of Electrical Workers Local 1466, AFL-CIO, the Union, the General Counsel of the National Labor Relations Board issued a complaint on 21 October 1982, and con- solidated amended complaint on 18 January 1983, against Columbus and Southern Ohio Electric Company, the Respondent, alleging that it has vio- lated Section 8(a)(5) and (1) of the Act. The Re- spondent filed answers to the complaint and con- solidated amended complaint denying the commis- sion of unfair labor practices and requesting that the complaint be dismissed. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On 13 April 1983 the Respondent, the Union, and the General Counsel filed with the Board a stipulation to transfer this proceeding to the Board. They agreed that certain documents would consti- tute the entire record, ' waived a hearing before an administrative law judge, and submitted this case directly to the Board for it to make findings of fact, conclusions of law, and the issuance of a De- cision and Order. On 24 August 1983 the Board ap- proved the stipulation and set a date for the filing of briefs. The Respondent and the General Counsel filed briefs. The Board has considered the entire record as stipulated by the parties and the briefs and makes the following FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Respondent, Columbus and Southern Ohio Electric Company, is now and has been at all mate- rial times an Ohio corporation with an office and place of business in Columbus, Ohio, and has been engaged in various locations in the State of Ohio as a public utility in the generation, transmission, dis- tribution, and sale of electrical power and related products. During the past 12 months, the Respond- ' The parties agreed that the charge, complaints, and notices of hear- ing, answers riled by the Respondent, and stipulation, including exhibits attached thereto, constitute the entire record in this case ent, in the course and conduct of its business oper- ations, derived gross revenues in excess of $250,000, and purchased and received at its various Ohio facilities products, goods, and materials valued in excess of $50,000 directly from points outside the State of Ohio. The Respondent admit- ted, and we find, that the Respondent is, and at all material times has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Union is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The question presented is whether the Respond- ent violated Section 8(a)(5) and (1) of the Act by unilaterally ceasing to honor the arbitration provi- sions of a collective-bargaining agreement. B. The Facts Since about 1 July 1966 the Union has represent- ed all the employees in the electrical division of the Respondent's Columbus, Ohio, and Southern Dis- tricts.2 Such recognition has been embodied in suc- cessive collective-bargaining agreements. The Agreement at issue in this case was effective by its terms from 16 July 1980 through 14 July 1982. Ar- ticle II, the Agreement's duration provision, pro- vided that: All employees in the electrical division of the [Respondent's] Columbus and Southern Dis- tricts including the Picway, Poston and Cones- ville Generating Stations, working foremen (including line foremen "C"), relay techni- cians, control operators, surveyors' assistants, instrument men and janitors, and, in the Co- lumbus District only, meter readers and divi- sional clerks, but excluding in both Districts, general office employees, guards (company police), technical engineers, salesmen and pro- fessional employees and supervisors, as defined in the Labor Management Relations Act of 1947, as amended. 8 The parties stipulated , and we find, that the Union is the exclusive bargaining representative within the meaning of Sec. 9 (a) of the Act of the unit described below and that the following described employees of the Respondent constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Sec 9 (b) of the Act. 287 NLRB No. 14 COLUMBUS & SOUTHERN OHIO ELECTRIC CO 145 This Agreement shall become effective as of 12 01 A.M. July 16, 1980 and shall be binding on the parties until 12:01 July 15, 1982. All terms and conditions of the agreement shall remain in full force and effect during such period and shall not be subject to renegoti- ation. The parties further agree that they will meet and negotiate in the period sixty days im- mediately prior to July 15, 1982. Article VII, the agreement's grievance-arbitra- tion no-strike provision, provided in pertinent part that: Section 2. When a grievance arises with respect to the rights of employees hereunder, including sus- pension or discharge, it shall be considered and disposed of in the manner as hereinafter provided. Section 5. Any grievance as defined in Section 2 above or any other dispute arising out of the inter- pretation of the terms of this agreement, or the application thereof, which has not been satis- factorily adjusted as hereinbefore provided, may be submitted to arbitration within forty five (45) calendar days after final disposition of the grievance in step 3 of the grievance proce- dure. Section 7. It being the mutual responsibility of the parties hereto to provide uninterrupted and continu- ous service to the public it is agreed that during the term of this agreement there shall be no strike, slow down, cessation or stoppage of the company's operations and no lockout, for any cause whatsoever. On 8 April 1982 the Union notified the Respond- ent that it desired to open the 1980-1982 Agree- ment pursuant to article II. On 19 April 1982 the Respondent notified the Union that it desired to terminate the 1980-1982 Agreement on its expira- tion and to meet and confer for the purpose of ne- gotiating a new agreement. On 12 July 1982 the parties agreed to extend the 1980-1982 Agreement until 20 July 1982 so that the Union could vote on a contract proposal sub- mitted by the Respondent on 12 July 1982. On 20 July 1982 Union Negotiatior William Hamler telephoned the Respondent's employee re- lations manager, N.C. Hitzeman, and informed him that the proposed contract had been rejected. Hit- zeman responded that because the Respondent was no longer afforded the protection provided by the no-strike provision of the 1980-1982 Agreement, the Respondent would not arbitrate grievances that arose as a result of incidents that occurred after 20 July 1982. On 21 July 1982 Hitzeman sent a letter to the Union confirming the foregoing telephone conversation of 20 July 1982 The letter stated as follows: This letter is written confirmation of our telephone conversation last night in which you were informed that with the expiration of the collective bargaining agreement on July 15, 1982 and the failure of the Union to ratify a new agreement on July 20, 1982, the Compa- ny's obligation to deduct union dues from the earnings of employees represented by Local 1466, IBEW was terminated. The Accounting Department has been instructed to discontinue union dues deductions Further, as I stated, since the Company is no longer afforded the protection provided by the no-strike clause of the expired agreement, the Company will not arbitrate grievances that arise as a result of incidents that occur after July 20, 1982. Other than in the 20 July 1982 telephone conver- sation and the 21 July 1982 confirmation letter, the subject of arbitrating grievances concerning inci- dents that took place following the expiration of the 1980-1982 Agreement and before agreement on a successor collective-bargaining agreement was not discussed by the parties. On 25 August 1982 the parties agreed to a suc- cessor collective-bargaining agreement effective by its terms from 25 August 1982 to 14 July 1985 No strike occurred during the period at issue here. During the hiatus period between 21 July 1982 through 25 August 1982, 10 grievances arose On 27 January 1983 the Union requested arbitration with respect to three of these grievances. Although the Respondent has processed grievances through the grievance procedure, the Respondent has re- fused to arbitrate the three grievances for the rea- sons set forth in its 21 July 1982 letter. The first grievance, filed 10 August 1982, asserts that on 5 August 1982 a supervisor performed unit work contrary to article III, section 3, of the ex- pired agreement, which provides that supervisors may demonstrate new methods and instruct new employees, but,shall not perform unit work. The second grievance, filed 10 August 1982, as- serts that on 5 August 1982 the Respondent im- properly failed to call out two employees for over- time work contrary to article XII of the expired Agreement, which contains provisions concerning the assignment and division of overtime. The third grievance, filed 2 September 1982, as- serts that on 22 August 1982 two employees missed 146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a meal period while on the job and that the Re- spondent owed these employees additional wages under the expired agreement's hours and overtime provisions. With respect to the Union's demand to arbitrate each of the foregoing grievances, the Respondent, through Hitzeman, responded that the "grievance is non arbitrable based on my letter sent to you July 21, 1982." C. Contentions of the Parties The General Counsel contends that under the Supreme Court's decision in Nolde Bros. v. Bakery Workers Local 358, 430 U.S. 243 (1977),3 the duty to arbitrate grievances survives the expiration of the contract even though the grievances concern incidents that occurred after the expiration of the contract. The General Counsel further contends that specific contractual provisions of the expired Agreement covered the grievances at issue and that the parties did not specifically negate the presump- tion in favor of continuing the arbitration clause within the meaning of Nolde. The Respondent contends that on the expiration of the substantive terms of the 1980-1982 Agree- ment, the duty to arbitrate grievances under that Agreement also terminated. The Respondent con- tends further that the Supreme Court decision in Nolde calls for arbitration after contract expiration solely as to rights vested, earned, or accrued during the term of the contract.4 D. Discussion and Conclusion In Indiana & Michigan Electric, supra, the Board recently reviewed the evolution of its precedent on the postexpiration duty to arbitrate in light of Nolde. The Board reaffirmed the general principles expressed in Hilton-Davis Chemical Co., 185 NLRB 241 (1970), that the duty to arbitrate arises solely from mutual consent and the Act does not impose a duty to adhere to the arbitration procedure inde- pendent of any contractual commitment. The Board found, however, that .. . the holding in Hilton-Davis that an em- ployer is free to adandon the arbitration proce- dure during a contractual hiatus must be modi- fied in light of Nolde. That holding was based on the assumption that when "the contract ex- pires, the arbitration commitment expires." 3 The briefs in this proceeding were filed before the Board 's decision in Indiana & Michigan Electric Co, 284 NLRB 53 (1987). 4 In its brief, counsel for the Respondent notes that it also represented the respondent in Indiana & Michigan Electric, supra, presenting essential- ly the same issue as the instant case In this regard, counsel for the Re- spondent asserts that the facts in this case and those in Indiana & Michi- gan Electric "are not significantly different " S&W Motor Lines, 236 NLRB at 948. Nolde teaches, however, that in certain circumstances the arbitration commitment survives the expi- ration of the collective-bargaining agreement embodying it. Here, as in Nolde, the expired contracts contained a broad arbitration clause and did not contain language sufficient to negate the presumption that the contractual obligation to arbitrate grievances arising under the contract extends to postexpiration disputes. Accordingly, the Respondent remained subject to a potentially viable contractual commitment to arbitrate even after the contracts expired. Consistent with Indiana & Michigan Electric, we find that the Respondent's announcement of 20 July 1982, as reaffirmed in its 21 July 1982 letter, constituted an impermissible unqualified unilateral abandonment of the arbitration procedure in viola- tion of Section 8(a)(5) and (1) of the Act. Thus, the Respondent announced unequivocally on those dates that it "will not arbitrate grievances that arise as a result of incidents that occur after July 20, 1982." As in Indiana & Michigan Electric, this re- fusal is without qualification and this would en- compass not only grievances for which there may have have been no postexpiration obligation to ar- bitrate, but also grievances that are arbitrable under Nolde notwithstanding that they concern incidents occurring after 20 July 1985.5 Further, as in Indiana & Michigan Electric, the expired contract contained a broad arbitration clause. Thus, the Agreement calls for arbitration of ..any grievance" arising with respect to the rights of employees thereunder or "any other dispute" arising out of the interpretation of the terms of the agreement. In addition, as in Indiana & Michigan Electric, the expired contract did not contain lan- guage sufficient to negate the presumption that the contractual obligation to arbitrate grievances aris- ing under the contract extends to certain postexpir- ation disputes. In this respect, we find that the presence of a duration clause in the expired Agree- ment, specifying that the Agreement was binding on the parties until a specific date and time, is in- sufficient to negate that presumption. Accordingly, we find that the Respondent's wholesale repudiation of its contractual obligation to arbitrate constitutes an impermissible unilateral change in violation of Section 8(aX5) and (1) of the Act. 5 Because of the Respondent's general repudiation and refusal to arbi- trate postexpiration grievances , this case is factually distinguishable from Bacardi Corp., 286 NLRB 422 (1987), and Gifford-Hill & Co, 285 NLRB 746 (1987), in which the Board found no violation of Sec. 8(ax5) and (1). COLUMBUS & SOUTHERN OHIO ELECTRIC CO. 147 THE 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. In accord with Indiana & Michigan Electric, however, it would be inappropriate to order arbitration of the three hiatus grievances unless the commitment to arbitrate extends to these particular grievances. In Indiana & Michigan Electric, the Board found that a dispute based on postexpiration events arises under the contract, and hence is arbitrable, only if it concerns contract rights capable of occurring or vesting to some degree during the life of the con- tract and ripening or remaining enforceable after the contract expires. The three hiatus grievances in this case raise contract issues pertaining to supervi- sory performance of unit work, assignment of over- time, and overtime meals . We conclude that the rights invoked in each of these grievances are not meaningfully distinguishable from the contract rights at issue in Indiana & Michigan Electric, and do not "arise under" the contract after its expira- tion. It does not appear that the contract rights as- serted here were worked for or accumulated over time nor is there any indication that the rights were to ripen or remain enforceable after contract expi- ration. Accordingly, the Respondent had no con- tractual obligation to arbitrate any of these griev- ances, and we shall not order the Respondent to do so.e CONCLUSIONS OF LAW 1. Columbus and Southern Ohio Electric Compa- ny, Columbus, Ohio, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Work- ers Local 1466, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to bargain collectively with Inter- national Brotherhood of Electrical Workers Local 1466, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the appropriate unit, by unilaterally repudiating the arbitration provi- sions of the 1980-1982 collective-bargaining agree- ment with the Union, the Respondent violated Sec- tion 8(a)(5) and (1) of the Act. 4. The foregoing is an unfair labor practice within the meaning of the Act. 6 Consistent with Member Johansen's partial dissent in Indiana & Michigan Electric, supra, he concurs in the majority's conclusion that the Respondent violated Sec 8(a)(5) of the Act by repudiating its contractual obligation to arbitrate after the contract expired He would find, howev- er, that the grievance disputes "arguably" were over provisions of the ex- pired contract and thus "arose under" the contract within the meaning of Nolde He, therefore, would order the Respondent to arbitrate the griev- ances, on request. ORDER The National Labor Relations Board orders that the Respondent, Columbus and Southern Electric Company, Columbus, Ohio, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively , within the meaning of the Act, with International Brother- hood of Electrical Workers Local 1466, AFL- CIO, as the exclusive bargaining representative of its employees in the appropriate unit, by unilateral- ly repudiating the arbitration provisions of the 1980-1982 collective-bargaining agreement with the Union. (b) 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. (b) Post at its facility in Columbus, Ohio, copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Re- gional Director for Region 9, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reason- able 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. 7 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." 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 Internation- al Brotherhood of Electrical Workers Local 1466, AFL-CIO, the exclusive representative of the em- ployees in the appropriate bargaining unit, by gen- 148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD erally repudiating any obligation to arbitrate griev- cise of the rights guaranteed you by Section 7 of ances arising after contract expiration . the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- COLUMBUS AND SOUTHERN OHIO ELECTRIC COMPANY