E I Dupont De Nemours And Co., Inc

896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I E I Dupont de Nemours and Company, Inc and Martinsville Nylon Employees' Council Corpo- ration i Cases 5-CA-18968 and 5-CA-19047 April 28, 1988 DECISION AND ORDER 13Y CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On July 20, 1988, Administrative Law Judge Thomas A Ricci issued the attached decision The General Counsel filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order and to adopt the recommended Order as modified The complaints allege that the Respondent vio- lated Section 8(a)(5) and (1) of the Act by unilater ally changing the terms and conditions of employ- ment of certain of its employees who are represent- ed by the Charging Party (the Union) Specifically, the complaint in Case 5-CA-18968 alleges that in June 1987 the Respondent unilaterally, and without notice to or bargaining with the Union, transferred clerical work from a higher paid employee in the unit to a lower paid unit employee, and dealt di- rectly with the employees in doing so The com- plaint in Case 5-CA-19047 alleges that in July 1987 the Respondent unilaterally assigned nonunit work to unit employees, again without notice to or bar gaining with the Union The Respondent denies having violated the Act in either respect, and as serts as an affirmative defense that the cases should be deferred to arbitration under United Technologies Corp, 268 NLRB 557 (1984) The judge first considered the merits and found that the Respondent had not acted unlawfully He also found that the cases should be deferred to ar- bitration On both grounds, he dismissed the com- plaints The General Counsel excepts to the judge's findings on the merits and also to his finding that the cases should be deferred For the reasons set forth below, we agree with the judge that the cases are deferrable 2 i The name of the Charging Party is misspelled in the judges decision We correct the error 2 Accordingly we do not reach the merits of the complaints and we do not rely on the judge s analysis of the merits Whether deferral is ap propnate is a threshold issue that must be decided in the negative before the merits of the unfair labor allegations are considered L E Myers Co 270 NLRB 1010 fn 2 (1984) See also Servomation Corp 271 NLRB The collective bargaining agreement that is in evidence expired by its terms on April 30, 1986 However, according to the testimony of Union President Dean Goad, the parties have agreed to continue that contract in effect on a day to day basis, at least as of the time of the hearing Goad also testified that the contract has (or had) a "sup plement"-a new contract that was in effect through August 31, 1987 (a date subsequent to the actions alleged to be unlawful), and that the "sup- plement" also continued on a day-to-day basis 3 It is not clear from Goad's testimony whether the "supplement" was simply an extension of the old agreement or whether, after April 30, 1986, there were two operational agreements-the old agree ment, which had been extended on a day to day basis, and the `supplement," which was effective until August 31, 1987, and from day to day thereaf- ter (The General Counsel's brief states that the supplemental agreement extended the contract through August 31, 1987, and thus indicates that the former is the accurate characterization of the two agreements) Whichever is the case, however, the record evidence points to a single conclusion that the provisions of the original contract had been continued in effect by agreement of the par ties, at least from day to day, throughout the period in which the unfair labor practices are al leged to have been committed 4 The contract contains a broad grievance-arbitra- tion procedure Article XII, section 2, states that the grievance procedure should be used `in the event that a dispute or grievance shall arise be tween the Company and the Union or any employ ee " Article XIII, section 1, provides that Any question as to the interpretation of this Agreement or as to any alleged violation of any provision of this Agreement which is not otherwise settled to the mutual satisfaction of the parties hereto, at the request of either party shall be submitted to arbitration Section 3 of article XIII provides that the arbi trator's decision is final and binding on the Re- spondent, the Union, and the employees 5 1112 1113 fn 7 (1984) Collyer Insulated Wire 192 NLRB 837 843 (1971) 3 The supplemental agreement is not in evidence and Goad did not testify about its substantive terms 4 Arizona Portland Cement Co 281 NLRB 304 (1986) relied on by the General Counsel thus is distinguishable In that case at the time the vio lations were committed the collective bargaining agreement had expired the parties had bargained to impasse and the employer had unilaterally imposed its own grievance arbitration mechanism to which the Board will not defer Here the contractual grievance arbitration procedure was effective by mutual agreement at the time of the alleged unfair labor practices 5 Except for grievance over promotions demotions terminations transfers and discharges (not pertinent here) there are no time limits Continued 293 NLRB No 109 E I DU PONT & CO 897 Although the contract thus provides for arbitra- tion of disputes arising under it, it is not obvious from the contract itself that it governs work assign- ments The contract does mention work assign- ments several times in other contexts, but does not specifically address the Respondent's authority to make or alter work assignments unilaterally, and there is no management-rights clause that could cover the subject by implication 6 However, earlier in 1987, a dispute arose over the subject of unit em- ployees' doing nonunit work on computers, and the Union not only grieved the issue through three steps of the grievance procedure, but also request ed arbitration 7 It appears, then, that the Union and the Respondent both consider issues regarding work assignment to be subject to the grievance ar- bitration process, notwithstanding the absence of specific contractual language Moreover, arbitra- tors frequently find that customs and past practices may become part of the "law of the shop" and thus enforceable through arbitration, even if they are within which a party is required to file a grievance Once a grievance is filed the Union normally is required to request arbitration within 30 days following the Respondent s reply to the grievance However because no grievances were filed in response to the actions at issue here this time limit appears to be irrelevant Although the Respondent has not specifi cally stated its willingness to waive any relevant timeliness requirements for invoking the grievance arbitration process we infer from its consist ent position that the cases should be deferred that it is willing to do so Servomation Corp 271 NLRB 1112 (1984) In any event the General Counsel does not oppose deferral on this ground 6 Art IV sec 3 cited by the Respondent refers to job classifications and to job descriptions which are used by the Respondent in performing job evaluations It does not in terms refer to work assignments The General Counsel citing Blue Cross Blue Shield of Michigan 286 NLRB No 50 (Sept 30 1987) and United Technologies supra urges that deferral is precluded because there is no contract clause provid mg specifically that unfair labor practices are subject to arbitration Contrary to the General Counsel s argument however the presence- of language expressly empowering an arbitrator to resolve unfair labor practice issues is not always a prerequisite to deferral The Board will defer unfair labor practice allegations to the arbitral proc ess as long as it is reasonable to anticipate that resolution of the con tract dispute would also resolve the unfair labor practice dispute In Blue Cross the Board did not defer because the contract lacked Ian guage directly concerning discrimination in violation of the Act and because the parties agreed that the employers conduct did not other wise breach the contract (On the other hand in United Technologies the presence of contractual language specifically listing discnmina tion under the Act as subject to the arbitration procedure supported the Board s decision to defer because the unfair labor practice dis pute was clearly covered by the contract ) In this case the only question is whether the Respondent was em powered by contract to make the unilateral changes it did or if not whether it violated Sec 8(a)(5) when it made those changes Thus even without contract language prohibiting these particular alleged violations of the Act the issue before the arbitrator necessarily will be the same issue raised in the complaints Accordingly in contrast with Blue Cross the absence of language concerning these unfair labor practices does not prevent deferral in this case The matter apparently was settled and therefore never was arbitrated Goad attempted to distinguish the earlier case from the ones before us on the ground that the instant cases involve work assignments made by the Respondent whereas in the earlier case unit employees had ven tured into doing nonunit work on their own We do not find the differ ence dispositive particularly because at least after the grievance was filed in the earlier case the employees were doing nonunit work with the Respondents knowledge and approval not a part of the written contract, and the Supreme Court has recognized arbitrators' authority to do so 8 Finally, where suits to compel arbitration under Section 301 are concerned, the Supreme Court has held that arbitration should be ordered "unless it may be said with positive assurance that the arbitration clause is not susceptible of an inter pretation that covers the asserted dispute Doubts should be resolved in favor of coverage " Steel- workers v Gulf Navigation, supra, 363 U S at 582- 583 9 In view of all the foregoing, we find that, al- though an arbitrator might find the disputes here not to be arbitrable, the likelihood that they are ar- bitrable is sufficiently great that the absence of spe- cific contract language on the subject should not preclude deferral Under all the circumstances, we find these cases suitable for deferral Thus, the parties have had a long and productive collective bargaining relation- ship,1 ° there is no claim of employer animosity to the employees' exercise of protected rights,' i there is a broad arbitration clause, which at least argu ably covers the disputes at issue, the Respondent apparently is willing to arbitrate the disputes, and because the disputes center around the Respond- ent's contractual authority to assign work to unit employees, they are eminently well suited to reso- lution by arbitration 12 Accordingly, we shall defer both cases to arbitration and dismiss the com- plaints 13 However, we shall modify the judge's recommended Order to retain jurisdiction, as is our usual practice, so that we may further consider these matters if it is alleged that the dispute has not promptly been settled or arbitrated, or that the grievance-arbitration procedure has not been fair or 8 Steelworkers v Gulf Navigation 363 U S 574 581-582 (1960) see also Elkoun & Elkoun How Arbitration Works 437-446 (4th ed 1985) Here for example there is evidence that the Respondent has bargained with the Union over the job descriptions of some of the affected employees An arbitrator might find such a practice binding on the Respondent 9 The Board s prearbitral deferral policy under Collyer and United Technologies supra like the resolution of disputes under Sec 301 of the Taft Hartley Act is premised on the Congressional policy favoring reso lution of labor disputes through arbitral processes set forth in Sec 203(d) of the Taft Hartley Act 10 The Union has represented the Respondents unit employees for some 44 years 11 No violations of Sec 8(a)(3) or independent violations of Sec 8(a)(1) are alleged Although the General Counsel does not oppose deferral on this basis the fact that the complaint in Case 5-CA-18968 contains a direct dealing allegation does not preclude deferral in that case The direct-dealing count is part and parcel with the unilateral action allegation See E I du Pont & Co 275 NLRB 693 695 (1985) 12 Collyer Insulated Wire supra 192 NLRB at 842 13 There is no ment to the General Counsel s contention that deferral is inappropriate because no grievance has been filed It is well settled that the filing of a grievance is not a prerequisite to deferral Blue Cross Blue Shield of Michigan supra fn 6 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD regular or has reached a result that is repugnant to the Act 14 Virginia I find that the Respondent is an employer within the meaning of the Act ORDER The complaints are dismissed, provided that Jurisdiction of these proceedings is retained for the limited purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the disputes have not, with reasonable promptness after the issuance of this Decision and Order, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the griev- ance or arbitration procedures have not been fair or regular or have reached a result that is repug nant to the Act 14 The Respondent must of course waive any timeliness provisions of the contractual grievance arbitration clauses so that the disputes may be processed in accordance with the following Order Jasper C Brown Esq for the General Counsel Allan G Burton Esq of Wilmington, Delaware, for the Respondent Kenneth Henley Esq of Philadelphia, Pennsylvania, for the Charging Party DECISION STATEMENT OF THE CASE THOMAS A Ricci Administrative Law Judge A hear ing in this proceeding was held on April 12, 1988, at Collinsville Virginia, on complaints of the General Counsel against E I Dupont DeNemours and Company, Inc (the Respondent or the Company) One complaint issued on August 28, 1987 on a charge filed by Martins ville Nylon Employees Counsel Corporation, here called the charging party or the Union on June 29 1987 The other complaint issued on September 30 1987 on a charge filed by the same Union on August 11, 1987 Each of the complaints alleges that the Respondent un lawfully refused to bargain with the Union in violation of Section 8(a)(5) of the Act Briefs were filed after the close of the hearing by the General Counsel and the Re spondent The Union did not file a brief after the close of the hearing On the entire record and from my obervation of the witnesses I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent a Delaware corporation with an office and place of business in Martinsville Virginia is engaged in the manufacture of continuous filament nylon yarns During the 12 months preceding issuance of the complaint, a representative period in the course of its business it purchased and received at its Martinsville fa cility products goods and materials valued in excess of $50 000 directly from points located outside the State of II THE LABOR ORGANIZATION INVOLVED I find that Martinsville Nylon Employees Council Corporation is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES Each of the two complaints here considered say the Company assigned work to employees without first bar gaining with the Union about those assignments, and therefore refused to bargain as the statute requires The major part of the record deals with work assignments to two employees-called electronic mechanics-in the complaint I will consider that matter first The Union is the bargaining agent in this plant of the Respondent for a unit consisting of about 1700 employees Exactly what the precise classifications are, or job titles, is very con fused and not at all clear on this record But from the witnesses talk of the kind of work performed throughout the plant, and their repeated references to a great variety of technical work performed it is clear many of the em ployees are engineers electricians, mechanics, technical repairmen, etc A clear understanding of exactly what kind of work many of them perform is not helped by the look at the last contract between the parties-the one which expired on April 30, 1986 and has not yet been renewed As to the kind of employees covered by that contract-i e those included the bargaining unit-all it says is the unit of employees represented by the union shall be the employees at the plant There is another reality that sheds some light on the real issue of this case This plant is an outstanding exam pie of the modern technological age Computers mecha nized machines electronic gadgets automatic processing equipment recordkeeping devices of all kinds, are used all over the place And of course for the installations maintenance, and operation of all this new styled equip ment, there are specially trained and qualified people to work The other varying nouns used by the witnesses while referring to this or that kind of employee are un ending It is simply not possible in the light of this kind of testimony to say exactly what category of employees did this or that kind of work in the large group of em ployees In early 1986, the Company decided to start using still another kind of computer or technical recordkeeping ma chine It was intended to improve the flow of work throughout this very large plant, to keep more accurate records of quantity of work performed, to record errors to be corrected, and to permit work to be performed more efficiently, possibly with fewer employees One of the objects to be achieved by the new technical method was a reduction of about 10 employees The new equip ment was called Bar Code There was talk between management and the Union about the planned installation of that machine The union agents were understandably concerned about the possible discharge of employees and the managers were sensitive to that interest of the Union The parties met a number E I DU PONT & CO of times during 1986 to discuss that very subject, as the witnesses all agreed at the hearing The Union s position was that if the new machine resulted in there being any unneeded employees the reduction in force should be ac complished by attrition meaning that the staff would be reduced only as employees died, retired, or otherwise left of their own volition In a plant of 1700 employees such a solution was a perfectly likely one The Company refused to let matters stand that way, and insisted that discharge might be necessary As it developed, the use of the Bar Code machine did not result in the reduction of any employees No one has been discharged, and no one s pay was reduced at all in consequence of the use of the Bar Code Two men were trained in the use of this Bar Code for 2 or 3 days by agents of the Company which was selling the new equipment to the Respondent The original charge, filed on June 29 1987, says the Respondent com mitted an unfair labor practice by loaning electronic craftsmen to the resource group " It is not possible on this record to say just what employees were included in the resource group The first complaint which issued on August 26, 1987, says nothing about that particular charge The second charge, filed on August 11, 1987, says the Company illegally ` unilaterally changed the terms and conditions of employment by requiring the performances of Bar Code ' work without first bargain ing with the union With this, the second complaint, issued on September 30, 1987 , alleges that the Respond ent `Transferred and assigned the duties concerning the use, repair and maintenance of Bar Code machines to unit employees, specifically the electronic mechanics, whose duties had not previously encompassed such re sponsibilities There is no evidence in this entire record of work of that particular machine being transferred from one group of employees to any other There is no evidence to indicate such work had previously been encom passed" in any other employees responsibilities There could be for that particular machine had not been in the plant before At one point, towards the start of the hearing, the General Counsel was asked what the factual statement by one of his witnesses had to do with the complaint Q What is the unfair labor practice that this man s testimony helps prove? MR BROWN Your Honor , we re getting to that point He shows that the work was actually done I have other witnesses who will- JUDGE Ricci I was asking about this man s testi mony What does his testimony relate to unfair labor paractice MR BROWN Your Honor this is part of the puzzle I'm trying to piece together here Later the General Counsel was asked to explain his position JUDGE Ricci And is the General Counsel argu ing that the illegality was to have given the work to one category instead of the other one9 MR BROWN No, Sir 899 Following this comment counsel for the Union tried to explain MR HENLY [Counsel for the Charging Party] If I may state my position since the Charging Party does have a roll in the hearing It there had been negotiations as there should have been under the al legations of the complaint it may well have been that the work would have eventually wound up with the instruments mechanics as opposed to the electronic craftsmen who the company unilaterally gave the work to To say the Company could as well have assigned a particular job to some other category of technical ex pens, is not to speak of any unfair labor practice at all The Union chose not to file a brief explaining exactly what it is that the Company is now charged with having done that amounted to a violation of the statute' As best I can understand the General Counsel s theory of complaint is that the Respondent chose two electronic mechanics to start the work on the new ma chine it was going to use without the prior approval of the Union Does a company with such a large a comple ment of employees- 1700 (including, as one witness said, 78 technical, electrical mechanical experts), a company that has brought in new, advanced , technical computers, programers, recording machines, and had this or that mechanical expert start work on them , a company whose technically trained employees are not clearly distinguish able by their skills, experiences, and training, have to dis cuss with the union just what employees among the great many qualified ones should be asked to do a par ticular job that fits the qualifications of probably all of them? Before answering yes to the question in his brief the General Counsel details the friction that has marked the relationship between this Company and this Union for over a year Despite the expiration of their old contract the parties have not met once in any effort to restore harmonious relations for over a year Instead various unfair labor practices have since been filed by the Union against the Respondent, many of them in process of consideration in other proceedings The Gov ernment s brief then says the earlier complaints now before me must be appraised in this context , that is in the light of the many other charges-none as yet proved in fact I see this as virtual admission that standing alone the facts shown in this case do not prove any prima facie case of wrongdoing by the Respondent It is a fact that in the process of installing the new Bar Code machine, management discussed at the Union s re quest, the possibility of a reduction in force and the pos sibility that the new machine might have a damaging effect on the employees as a whole That the Company did all this correctly is not disputed Was it obligated to discuss with the Union just which technicians should be chosen to work on the new machine which clearly fell within the class of machines these employees had worked on? On this record I think not I shall recom mend dismissal of the first complaint We come to the second complaint There is a produc tion planning department, where a number of clerks 900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work They keep records of the work in detail as it pro gresses throughout the plant During 1987-Deborah Bryant, a clerical employee worked in that department She was classified as a Class C employee which is paid at a certain hourly rate In the room next to her worked two other clerical employees, Carnco and Eagle They too kept detailed records but they fall in a class called Level A, meaning they were paid at a higher hourly rate In June 1987 Bryant did not have enough work to keep her busy all day Her work had simply fallen off There was talk of eliminating her job altogeth er and letting her go She was worried So she talked, as she testified to Michael Wade, who was in charge of all the planning departments She asked was there was any other work she could do to keep her job Wade told her No' In the room next to her, Carrico and Eagle were over loaded with work and doing overtime It seems some other employee had quit and more work was given to these two men A few days after her first appeal to the supervisor, Wade, again as Bryant testified, Wade told her that Carnco would show her how to do some more work That same day Carrico explained to Bryant how to record miscellaneous orders and she started doing that in her spare time Bryant said at the hearing that that work was similar to other work she had per formed In fact, the recordkeeping she started doing, with Carnco always checking it after she had finished, fitted into a phrase in her then ,lob description- com plete and post data ' With this small amount of added work, Bryant s job was saved After a few months in February 1988 Bryant was transferred to another job where she is still at work Bryant also testified this was not the first time she had asked for additional work It did not require overtime on her part She also said the added work occupied about 4 hours of her time each week Carnco who also testified said it took only 5 minutes to show her how to do that that he always checked what she did too because it re mained his responsibility to see that there were no mis takes and that on an average Bryant spent between 1 1/2-2 hours a week doing that work With each of these two employees having an axe to grind, I would split the difference between them and say Bryant did 3 hours of work weekly on that added work Carnco and Eagle were class A workers How much class A and class C were paid no one bothered to bung out at the hearing Certainly the difference could not have been great And surely, whatever the difference in their weekly pay may have been, had Byant been paid A level for that little work she would have earned about three fortieths of the difference Bryant also said she did not complain to the Union about any underpayment nor to her supervisor She was glad to add a little security to her job In fact the Union never said a word to anyone about this help by manage ment to Bryant until they filed a charge in this case And, of course, as in the case of the employees who are unilaterally' asked to work on the Bar Code machine, the Union filed no grievance of any kind Did the Respondent unilaterally transfer work from a higher paid employee to a lower paid one thereby vio lating Section 8(a)(5) of the Act? Did it underpay Bryant for the 3 hours a week she did and violate Section 8(a)(3) of the Act? A unilateral change to be unlawful, must be material substantial, and significant Rust Craft Broadcasting, 225 NLRB 327 (1976) The above de scribed incident was not I shall recommend dismissal of this complaint also There is a second ground for dismissal of both these two complaints Although the last collective bargaining agreement between the parties has not been renewed, the parties have agreed that it remains in effect from day to day It contains the clearest arbitration procedures If ever a dispute fitted into the area intended for arbitra tion, it is the one shown in each of these two complaints Both complaints are dismissable on the basis of Collyer Insulated Wire 192 NLRB 837 (1971) and United Tech nologies Corp, 268 NLRB 557 (1984) On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed' ORDER I recommend that both complaints be dismissed 'If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses