Paramount Potato Chip Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paramount Potato Chip Company, Inc. and General Drivers Union, Local 332, International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case 7-CA- 16395 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 18, 1980, Administrative Law Judge Hutton S. Brandon issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Paramount Potato Chip Company, Inc., Flint, Michigan, its of- ficers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE HuFrroN S. BRANDON, Administrative Law Judge: This case was heard in Burton, Michigan, on March 6, 1980. The charge was filed by General Drivers Union, Local 332, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union or the Charging Party, on May 21, 1979.' The complaint was issued on October 1, and alleged violations of Section 8(a)(5) and (1) of the Na- tional Labor Relations Act, herein called the Act, by Paramount Potato Chip Company, Inc., herein called the Respondent or the Company. The issue presented by the case is whether the Respondent violated Section 8(a)(5) and (I) of the Act by unilaterally modifying the terms of the parties' collective bargaining agreement through its refusal to comply with those provisions of the agreement relative to the arbitration of unresolved grievances and the in-plant posting of a unit employee seniority list. Upon the entire record including my observation of the demeanor of the witnesses, and after due considera- All dates are in 1979 unless otherwise stated tion of the brief filed by the General Counsel, I make the following: FINDINGS OF FACT 1. JURISI)ICTION The Respondent is a Michigan corporation with its principal office and place of business located in Flint, Michigan, where it is engaged in the preparation, sale, and distribution of potato chips, popcorn, and related products. During the fiscal year ending September 30, 1978, the Respondent purchased raw materials valued in excess of $50,000 directly from suppliers located outside the State of Michigan and during the same period of time sold and distributed its finished products valued in excess of $50,000 directly to points located outside the State. The complaint alleges, the Respondent admits, and I find, that the Respondent is an employer engaged in commerce within the meaning of Sections 2(2), (6), and (7) of the Act. II. IHE ABOR ORGANIZATION INVOLVEI) The complaint alleges, the Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. Ilt. ITHE ALLEGED UNFAIR I.ABOR PRACTICES A. Material Facts Allegations of the complaint admitted by the Respcnd- ent establish that in or about 1961 the Union was certi- fied as the exclusive collective-bargaining representative of the employees of the Respondent in the following unit, which is admitted by the Respondent to be appro- priate: All maintenance employees, fryer B employees, fryer A employees, machine technicians, vendor drivers and warehousemen, production employees, material handlers and maintenance helpers, fryer helpers and relief men employed by Respondent at its Flint, Michigan plant. Subsequent to 1961 the Respondent and the Union were parties to a continuous series of collective bargain- ing agreements with the latest such agreement being ef- fective from May 22, 1977, to May 22, 1981. Pertinent provisions of that agreement include article VI, section 2, involving the posting of an employee seniority list and article VII relating to the grievance procedure and arbi- tration. More specifically, article VI, section 2, reads as follows: The Employer shall post a list of the employees ar- ranged in order of their seniority in each classifica- tion. This list shall be posted in a conspicuous place at the place of employment. With respect to grievances and arbitration the agree- ment provides for a four-step grievance process includ- ing the last step, submission to arbitration. Specifically, under section 3(A) of article VII, step 4 provides: 252 NLRB No. 117 794 PARAMOUNT POTATO CHIP COMPANY. INC. In the event the last step fails to settle the com- plaint, it shall be referred to the Board of Arbitra- tion upon the request of either party. The President and/or Executive Board of the Local Union shall have the right to determine whether or not a griev- ance filed by a member of the Union is qualified to be submitted to arbitration. Subparagraph B of the same section sets out the proce- dure for the selection of the three member "Board of Ar- bitration" and provides that "a majority decision of the Board of Arbitration shall be rendered without undue delay and shall be final and binding upon both parties." Cost of any arbitration was to be borne equally by the Respondent and the Union. Robert Johnson, the Respondent's president, testified that the last time the parties had gone to arbitration on an issue was in 1977 or 1978 but there had been several arbitrations prior to that. No documentary evidence was submitted to substantiate Johnson's claim in this regard. While Johnson's testimony as to prior arbitrations was not directly contradicted, Tommy Dan Ruff, who became a business agent for the Union about December 1978, testified that union records reflected only one prior written request to the Respondent for arbitration and that was in 1975. Ultimate disposition of that request was not shown. There is little else in the record to indicate whether the relationship between the Respondent and the Union prior to 1979 had been an amicable one. Un- denied remarks attributed to Johnson by General Coun- sel witnesses, infra, suggest it was not. It is clear, howev- er, at least from Johnson's testimony, that beginning in early 1979 and following a change in union officers and business agents the relationship between the Respondent and the Union deteriorated. As Johnson put it, the Re- spondent's plant became "a real grievance factory." It was the filing of these grievances and, more particularly, Johnson's response to them that provides the basis for the General Counsel's allegations herein. The General Counsel submitted into evidence 22 grievances filed by employees from January 24 through May 17. These grievances were taken up at various times with Johnson at the last step prior to arbitration by the Union representatives and stewards. On at least 20 of the 22 grievances arbitration was requested by the Union ac- cording to uncontradicted testimony of General Counsel witnesses. Invariably, according to the General Counsel's witnesses, Johnson, beginning in January, refused to honor his contractual commitment to submit disputes to arbitration. In regard to such refusals, Imogene Arthur, a union steward, testified that in a mid-February grievance meet- ing that she attended between Johnson, his wife Martha, the secretary-treasurer of the Respondent, and Frank Pi- linyi, president of the Union, Johnson denied a grievance filed by employee Michael Kleckler. When, according to Arthur, Pilinyi said the Union would take the matter to arbitration, Johnson responded that he did not care where Pilinyi took it, but there was no way he was going to arbitration. While Pilinyi testified for the Gen- eral Counsel, he did not testify regarding this particular meeting. Arthur also testified about a meeting with Johnson re- garding a grievance of employee Glenn Yarborough sometime within a week or two after the grievance was filed on February 19. That meeting was attended by Union Business Agent Ruff, Helen Whiteman, another union steward, and by Mrs. Johnson. Johnson denied the grievance and Ruff asked for arbitration. Johnson replied there was "no way" he was going to arbitrate the matter. Similarly, still according to Arthur. at around the same time, Johnson rejected at the last level prior to arbitra- tion a grievance filed by employee Jeff Reider. When Ruff said the Union would take the matter to arbitration Johnson replied, "I don't care where you take it. There is no damn way of going to arbitration." On another occasion around the same period of time, late February to mid-March, Arthur and Ruff met with Mr. and Mrs. Johnson regarding a grievance of employ- ee James Harrington. Johnson refused to resolve the grievance and Ruff requested arbitration. Johnson re- sponded that there was "no damn way" he would take it to arbitration. Ruffs testimony generally corroborated Arthur's with respect to the grievance sessions with Johnson, although there was some confusion between Ruff and Arthur as to the dates of the sessions. Ruff testified that when he asked for arbitration Johnson would become irate and complain about the trouble the Union caused him and state that he would not go to arbitration. Specifically, with respect to the Harrington grievance, when Ruff asked for arbitration Johnson stated: "Hell, no. I am not going to arbitration. You can ask until you are blue in the face. You will never get me to go to an arbitrator. And I will never pay one." Subsequently, by memo dated March 14 Ruff submit- ted in writing the names of five arbitrators to Johnson for the selection of one to arbitrate the Harrington, Reider, and Yarborough grievances. It is undisputed that Johnson never responded to the memo. Johnson claimed in his testimony that he referred the memo to his attor- ney for reply, but the record shows no response by the attorney. Ruff testified that about a week after the March 14 memo Johnson told him in reference to the memo that he could send him letters all day long but that he would still "refuse to go to arbitration." None- theless, Ruff submitted another written request for arbi- tration on all outstanding grievances toward the last of March, but again received no response.2 Ruff also testified about an even earlier grievance ses- sion with Johnson the last week of January concerning the grievance of Ernestine LeFlore. Johnson stated it would be over his dead body that LeFlore would get the position sought by her in the grievance. Ruff asked John- son to go to arbitration on the matter but Johnson slammed his hand on the desk and stated he would not go to arbitration, had never gone to arbitration, and would not pay to go to arbitration. Johnson said Ruff 2 Ruff retained no copy of this request and Johnson, after first equivo- cating. denied having received it. Because Ruff impressed me as a credi- ble Aitness. and since Johnson had already shown his disinclination to re- spond to written requests for selection of arbitrators. I credit Ruffs testi- mony that the second written request was in fact sent to Johnson. 795 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could pick arbitrators all day, but Johnson would not go to arbitration.' In another meeting with Johnson the first week of February, on LeFlore's grievance, with Arthur present Johnson continued his opposition to the grievance and began to complain about LeFlore, Arthur, and the Union. Johnson, Ruff testified, said LeFlore and Arthur were troublemakers and if he got rid of them he would have no problems there. He also stated, however, that the Union was the root of all his problems, both busin- esswise and domestic. The meeting ended with Johnson asking for more time to think about LeFlores' grievance but, shortly thereafter, he abolished the basis of Le- Flore's grievance by abolishing the position sought by her. There were additional grievances filed in late March, April, and May and Johnson consistently refused, ac- cording to General Counsel witnesses Arthur, Pilinyi, and Union Business Representative Daniel Hawk to take any of these grievances to arbitration. It is unnecessary to detail these grievances. The Respondent did not defend this case on any contention that the grievances were not arbitrable. These three witnesses unanimously described Johnson as repeatedly and steadfastly stating at the grievance sessions through May that he would not arbitrate the grievances, that he had never paid for arbi- tration, and that he intended never to go to arbitration. Moreover, Arthur, Ruff, and Hawk testified that at some of the grievance meetings Johnson engaged in discourte- ous if not contemptuous conduct by "making faces," humming to himself, or turning his back on them. Finally at the last meeting between Johnson and the union repre- sentatives and stewards in mid-May Johnson stated he was going to hire legal counsel and would not even talk to the union representatives anymore. Subsequent to that time Johnson did employ an attorney and the Union's contacts thereafter on grievances were with the Re- spondent's attorney. The record does not establish that the 20 grievances on which the Union sought arbitration were ultimately resolved or arbitrated. There was considerable confusion among the General Counsel's witnesses, Arthur, Ruff, Pilinyi, and Hawk, re- garding the dates of their respective sessions with Mr. and Mrs. Johnson. Their respective recollections as to dates, sequences of events, and the parties present at the grievance sessions were not impressive. They were new to their respective positions and apparently due to inex- perience took no notes of the grievance sessions. Never- theless, their testimony was for the most part mutually corroborative and I am convinced as to the general accu- racy, reliability, and credibility of such testimony regard- ing statements they attributed to Johnson. Moreover, Johnson did not specifically contradict the specific re- marks or conduct attributed to him. Additionally, I found Johnson to be evasive and, at times, argumentative 3 Arthur attended a meeting with Johnson on the LeFlore grievance and reported similar comments by Johnson about not arbitating LeFlore's grievance However, she identified Dan Hawk as the union representa- tive present rather than Ruff. I conclude she was ill error for Hawk did not begin fully servicing the contract until mid-April when Ruff left to attend a school for business agents, Moreover, Hawk in his testimony did not testify about attending the session on LeFlore's grievance. in his testimony and generally unconvincing. According- ly, I do not credit his testimony whenever it is specifical- ly contradicted by Arthur, Ruff, Pilinyi, or Hawk. There is little dispute concerning the facts relating to the Respondent's failure to post the employee seniority list. The Respondent's answer admits that as of the date the charge herein was filed no seniority list was posted as required by the contract. From the evidence it ap- pears that such failure to post had persisted in spite of repeated requests by the Union for such postings. Thus, Arthur testified she had heard several requests by the business agents for a posting of the seniority list but Johnson on one occasion said "we can't be sitting down all the time making out seniority lists. We have more im- portant things to do." Arthur's testimony in this regard was supported by that of Ruff. The Union's request for the posting of the seniority list was conceded by Johnson who related that seniority lists in earlier years had been posted. Mrs. Johnson testified she was responsible for posting of the seniority list and admitted having een requested to post the list. Howev- er, she admitted it was not posted "because of my own inability to get everything done." She added, "I did not consider it a high priority item and I operate on priority items on that basis." She explained that she felt that the list was not a high priority matter because it was such a small group of people (about 30 employees in the unit) who knew what their seniority positions were. B. Discussion and Conclusion From the credited testimony of the General Counsel's witnesses it is clear that the Respondent refused to arbi- trate a number of grievances over a period of several months and, through Johnson, adamantly insisted it would not arbitrate any grievances at all. It is equally clear that the Respondent for several months, and despite repeated requests by the Union, failed and refused to post at its facility an employee seniority list. In these ac- tions the Respondent unquestionably breached its con- tractual obligations with the Union. Ordinarily, a breach of a collective-bargaining agree- ment, including a refusal to arbitrate, does not constitute a per se violation of Section 8(a)(5) of the Act. See Taft Broadcasting Company, WDAF AM-FM-TV, 185 NLRB 202 (1970). The Board in such cases leaves the parties to enforce their contractual rights through civil litigation under Section 301 of the Act or perhaps through other means provided under the collective-bar- gaining agreement itself. However, as the Administrative Law Judge stated with Board approval in Garland Dis- tributing Company, 234 NLRB 1275, 1280-81 (1978); The fact that Respondent's conduct also consti- tutes a breach of contract does not, of course, oust the Board from jurisdiction over the subject matter of this proceeding. The law is well settled that where conduct is of a kind condemned by the Act, it is not ruled out as an unfair labor practice be- cause it happens also to be a breach of contract. . . .The Supreme Court has made it clear that the availability of a contract remedy does not divest the 796 PARAMOUNT POTATO CHIP COMPANY, INC. Board of its jurisdiction to remedy unfair labor practices. N.L.R.B. v. Strong d/b/a Roofing & Insu- lating Co., 393 U.S. 357 (1969). And where an employer's breach of contract is so clear and flagrant as to amount to either a repudiation of the contract or a unilateral modification of it, the Board will find a violation of Section 8(a)(5). See Independent Stave Company, Diversified Industries Division, 233 NLRB 1202 (1977), enfd. as modified 591 F.2d 443 (8th Cir. 1979); Pacific Grinding Wheel Co., Inc., 220 NLRB 1389 (1975), Papercraft Corporation, 212 NLRB 240 (1974); Nedco Construction Corp., 206 NLRB 150 (1973). Viewing the instant case in the light of the foregoing principles, I am convinced that the General Counsel has established the violations alleged. The Respondent's ac- tions here constituted more than a simple breach of con- tract. Johnson made it abundantly clear through his statements to Union representatives that he was not going to arbitrate any grievance. Thus, his actions and statements may not be regarded as merely posturing, nor can they be viewed as a tactical maneuver with respect to a particular grievance. The Respondent's refusal to ar- bitrate were not limited to one grievance or even a class of grievances. Under these circumstances, the Respond- ent's actions can only be regarded, and I so regard them, as an outright repudiation of that provision of the con- tract requiring the submission of unresolved disputes to arbitration at the request of one or the other parties to the agreement. 4 By its action the Respondent unilaterally changed and modified the collective- bargaining agree- ment by, in effect, eliminating the arbitration provision. Accordingly, I find and conclude that the Respondent's actions in this regard constituted a violation of Section 8(a)(5) and (1) of the Act. See Independent Stave Compa- ny, supra; The Bell Company, 225 NLRB 474 (1976); Curtis Manufacturing Co., Inc., 189 NLRB 192 (1971). The Respondent's failure and refusal to post the se- niority list stands on a similar footing and is further re- vealing as to its approach to its collective- bargaining commitments. Here again the contractual requirement for the posting of such a notice was clear and unambiguous. Yet no such list was posted during the relevant times herein despite the Union's request for the posting. The failure to post or to otherwise supply the Union with the seniority information undoubtedly made it more difficult to administer the contract and to consider the merit of grievances relating to seniority. In view of the Union's requests for posting the failure to post the list cannot be excused as simple oversight. Indeed, the explanation given for the failure to post was the low "priority" ac- corded it by Mrs. Johnson. In view of the ready avail- ability of the seniority information to the Respondent and the relatively small number of employees in the unit, the priority accorded the posting can only be regarded as another example of the Respondent's intentional fail- 4 While the Respondent at the hearing through testimony suggested that the Union never perfected any request for arbitration. the record does not establish what steps were required either contractually or by past practice to perfect such a request In any eent, since Johnson made it clear he would never go to arbitration on any grievance "perfection" of any request for arbitration ould clearly have been futile ure to abide by its contractual commitments to the Union. Accordingly, I conclude that the failure to post the seniority list, when considered in context with its re- fusal to arbitrate grievances, was but another instance of a repudiation of a contractual requirement and, to that extent, a unilateral modification of the collective- bar- gaining agreement in violation of Section 8(a)(5) of the Act. Considering the Respondent's total conduct in its deal- ing with the Union and its refusal to arbitrate and to post the seniority list I am persuaded that the Respondent's actions went beyond a mere breach of the collective-bar- gaining agreement and reached that level of conduct condemned and found unlawful by the Board in Nedco Construction Corp., supra, at 151, as constituting "a re- nunciation of the most basic of collective bargaining principles, the acceptance and implementation of the bar- gain reached during negotiations." I therefore conclude, notwithstanding the possible availability of some contrac- tual remedy before some other forum, that it is appropri- ate under the circumstances of this case for the Board to assert its jurisdiction in the matter and issue an order re- medying the Respondent's unfair labor practice.5 CONCI.USIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act 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, and has been at all materi- al times herein the exclusive representative of the Re- spondent's employees in the appropriate unit described below for the purposes of collective-bargaining within the meaning of Section 9(a) and (b) of the Act. 3. All maintenance employees, fryer B employees, fryer A employees, machine technicians, vendor drivers and warehousemen, production employees, material han- dlers and maintenance helpers, fryer helpers, and relief men employed by Respondent at its Flint, Michigan, plant constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By unilaterally repudiating and modifying its collec- tive-bargaining agreement with the Union by adamantly refusing to arbitrate grievances and failing and refusing to post an employee seniority list the Respondent has re- fused to bargain with the Union and has thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that the Respondent be ordered to cease and desist therefrom, s The testimony of Arthur suggests that subsequent to the retention of Respondent's attorney an employee seniority list sas posted An order here nevertheless appears appropriate in order to insure that Respondent in the future accords appropriate "priority" to the posting ofl such lists 797 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that it take appropriate affirmative action set forth in the recommended Order which I find necessary to effec- tuate the purposes of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 6 The Respondent, Paramount Potato Chip Company, Inc., Flint, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with General Drivers Union, Local 332, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the ap- propriate bargaining unit by unilaterally repudiating and/ or modifying the terms and conditions in the collective- bargaining agreement with the above named Union with respect to the arbitration of disputes and the posting of a seniority list of employees in the appropriate unit cov- ered by the agreement. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act: 2. Take the following action which is designed to ef- fectuate the policies of the Act. (a) Post at its Flint, Michigan, facility copies of the at- tached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 7 In the event that 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 National L.abor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. Region 7, after being duly signed by the Respondent's representative shall be posted by it immediately upon re- ceipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NoriCE To EMPLOYEES PosTED BY ORDER OF TIHE NATIONAL LABOR REI.ATIONs BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL. NOT refuse to bargain with General Drivers Union, Local 332, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the appropriate bargaining unit by unilaterally repudiating and/or modifying the terms and conditions of the collective-bagaining agreement with the Union with respect to the arbi- tration of disputes and the posting of a seniority list of employees in the appropriate unit covered by the agreement. WEI wl.l. NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act. PARAMOUNT POTATO CHIP COMPANY, INC. 798