Dennison National Co.

DENNISON NATIONAL CO. Dennison National Company and Graphic Communi- cations International Union, Local 48-B, AFL- CIO. Case 1-CA-24834 August 21, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On August 9, 1988,1 the Regional Director for Region 1 of the National Labor Relations Board issued a complaint and notice of hearing in the above-entitled proceeding, alleging that the Re- spondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional Labor Relations Act. Subsequently, the Re- spondent filed an answer, admitting in part and de- nying in part the complaint allegations, stating de- fenses, and requesting that the complaint be dis- missed. On August 25, the Respondent filed with the Board in Washington, D.C., a Motion for Summary Judgment, claiming that there are no issues of dis- puted fact requiring a hearing, that the Board should defer to the arbitrator's decision in this case, and that the complaint should be dismissed. On August 29, the Board issued an order transferring the case to the Board and a Notice to Show Cause why the motion should not be granted. The Gener- al Counsel and the Charging Party, the Union, re- sponded to the Notice to Show Cause and filed briefs opposing the Respondent's motion. The Re- spondent thereafter filed a reply brief, and the General Counsel filed a brief in response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On March 20, 1987, without notifying the Union, the Respondent eliminated the Receiver (Special Orders) job classification. The Union thereafter filed a grievance over this action and, on July 16, 1987, the Union filed an unfair labor practice charge alleging that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act by failing to notify and bargain with the Union over the elimination of the job classification.2 On August 28, 1987, the Regional Director noti- fied the parties that he would not issue a complaint on the charge because the charge would be de- ferred for arbitration. Subsequently, on December 4, 1987, a hearing was held before Arbitrator Robert M. O'Brien. The All dates hereafter are in 1988 , unless otherwise specified s The charge was subsequently amended to exclude a related refusal- to-provide-information allegation. 169 parties stipulated that the question for the arbitra- tor to resolve was whether the Respondent violat- ed the contract by eliminating the Receiver (Spe- cial Orders) job classification. The Union also re- quested the arbitrator to decide whether it had waived its right to notice and an opportunity to bargain before job classifications were eliminated. In his award dated February 11, 1988, the arbi- trator found that no contract provision specifically granted the Respondent the right to eliminate job classifications without bargaining with the Union or specifically proscribed the Respondent from doing so. The arbitrator also found, however, that the contract's management-rights clause reserved to the Respondent the right to eliminate job classi- fications unilaterally. Finally, the arbitrator stated that he was not authorized to address the Union's waiver question because "it is a statutory issue that must be decided by the NLRB." Following the arbitrator's award, the Respond- ent requested that the Regional Director dismiss the charge as the award met the standards for de- ferral set forth in Olin Corp., 268 NLRB 573 (1984). The General Counsel determined that defer- ral was not appropriate and issued the complaint. Consideration de novo of the unfair labor prac- tice issue in this case would require the Board to examine whether the Union has waived its statuto- ry right to advance notice of and an opportunity to bargain about the decision to eliminate job classifi- cations and, if not, ' whether the Respondent has bargained about the decision to eliminate the Re- ceiver (Special Orders) job classification. S The issue before us, however, is whether the Respond- ent is entitled to entry of summary judgment in its favor because there are no genuine issues of materi- al fact and deferral to the arbitrator's award is ap- propriate as a matter of law. The General Counsel and the Union contend that the arbitrator's award does not merit deferral because the arbitrator did not consider the waiver aspect of the unfair labor practice issue. We disagree. It is well settled that the Board will defer to an arbitration award when the proceedings appear to have been fair and regular, all parties had agreed to' be bound, the decision of the arbitrator is not clear- ly repugnant to the purposes and policies of the Act, Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955), and the arbitrator considered the unfair labor practice issue that the Board is called on to decide. Raytheon Co., 140 NLRB 883, 884-885 (1963). The Board will find that the arbitrator has ' It is undisputed that the Respondent did not bargain with the Union over the decision to eliminate the Receiver (Special Orders) job classifi- cation 296 NLRB No. 22 170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD adequately considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. Olin Corp., 268 NLRB 573, 574 (1984). Differences, if any, be- tween the contractual and statutory standards of review are weighed by the Board as part of its de- termination under the Spielberg standards of wheth- er an award is clearly repugnant to the Act. Id. As effectively resolved by the arbitrator, the contractual issue was factually parallel to the unfair labor practice issue. The arbitrator considered the contractual question of whether the Respondent's unilateral elimination of the Receiver (Special Orders) job classification without giving the Union advance notice and opportunity to bargain violated the collective-bargaining agreement.4 The arbitra- tor, however, did not limit himself to that issue but also found that under the management-rights clause5 of the contract the Respondent had the right to act unilaterally. 6 In an unfair labor prac- tice proceeding on the merits of the statutory issue, the Board must consider whether the Respondent's action constituted a unilateral change in violation 4 The arbitrator declined the Union' s request that he address the statu- tory question of whether the Union had waived its right to advance notice and opportunity to bargain over such decisions That fact is of no moment in the circumstances of this case . In Reichhold Chemicals, 275 NLRB 1414, 1415 ( 1985), and Badger Meter, 272 NLRB 824 fn. 10 (1984), arbitrators similarly did not explicitly consider statutory issues , yet the Board deferred in each case Only the National Labor Relations Board can actually determine whether an unfair labor practice has been commit- ted. But, as discussed infra, Olin and its progeny teach that arbitrators can decide contractual issues in such a way as to effectively resolve the unfair labor practice issue See also Bay Shipbuilding Corp., 251 NLRB 809, 810 (1980) (Although the arbitrator specifically declined to decide whether the respondent violated Sec 8(a)(5), "he made factual findings, in the course of resolving the contractual issue , which resolve the unfair labor practice issues This is all that is necessary for deferral."). S The clause provided as follows Article XVI Management Rights The Company retains the right to manage the business and to direct the work force, to make all decisions and to take whatever action it deems necessary in connection therewith including the promulgation of rules and regulations, except as subject to the provisions of this contract and supplements thereto. 6 Armour & Ca, 280 NLRB 824 ( 1986), on which the General Counsel relies, is not analogous . Unlike the instant case, the arbitrator in Armour merely determined that "nothing in the contract " prohibited the respond- ent from taking the unilateral action in question . Under those circum- stances, the Board properly ruled that the contract issue resolved by the arbitrator was not factually parallel to the statutory issue before the Board because an employer can violate its statutory obligation to bargain without also violating its collective -bargaining agreement Here, in con- trast, we have an express finding that the contract's management -rights clause reserved to the Respondent the right to eliminate the Receiver (Special Orders) job classification As explained infra, such a finding is conclusive of the statutory issue in this case of its bargaining obligation under Section 8(a)(5) of the Act. The presence of contractual authorization for the Respondent's action is determinative of the unfair labor practice allegation. Teledyne Industries, 275 NLRB 520 fn. 2 (1985). Accordingly, we find that the contractual issue effectively resolved by the arbitrator was factually parallel to the unfair labor practice issue. See Columbia University, 279 NLRB 130, 131-132 (1986). As to whether the parties generally presented the arbitrator with facts relevant to the statutory issue, the record shows that the arbitrator received ample evidence, i.e., the parties' contract and evidence of past practice. The Board would necessarily consid- er the same facts in reaching a decision on the Union's unilateral change allegation. Accordingly, we find that the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. See Reichhold Chemicals, supra; Badger Meter, supra. No party contends that the proceedings were unfair or irregular or that any party did not agree to be bound by the arbitrator's award. Therefore, the only question remaining is whether the award is clearly repugnant to the Act. We find that it is not. The arbitrator found that although no contract provision specifically prohibits or permits the Re- spondent unilaterally to eliminate job classifications without bargaining, the right unilaterally to elimi- nate the Receiver (Special Orders) classification "was a right reserved to it by Article XVI, the Management Rights clause, of the Agreement." Similar to the arbitrator, the Board, if presented with this case de novo, would have determined whether the contract authorized the Respondent unilaterally to eliminate the Receiver (Special Orders) job classification. If the Board found that the contract permitted this action, the Board would then have found that the Respondent did not vio- late its statutory bargaining obligation. See Reich- hold Chemicals, supra at 1416. The Board's involvement at this postarbitration deferral stage, however, is not in the nature of an appeal by trial de novo. It is not necessary that the case have been presented to the arbitrator the way the General Counsel might have presented it with the benefit of hindsight. Moreover, notwithstanding that the arbitrator's award may not be totally con- sistent with Board precedent, deferral is appropri- ate unless the General Counsel can show that the award is not susceptible to an interpretation con- sistent with the Act. Reichhold Chemicals, supra; Olin, supra. The General Counsel has not met this burden. DENNISON NATIONAL CO. 171 Accordingly, we grant the Respondent's Motion ORDER for Summary Judgment, defer to the arbitration The complaint is dismissed. award, and dismiss the complaint.