Hoover Co

National Labor Relations Board - Board Decisions

May 15, 1992

307 N.L.R.B. 524 (N.L.R.B. 1992)

524
307 NLRB No. 73
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge relied on, inter alia, Motor Convoy, 303 NLRB 135
(1991), a case in which Chairman Stephens and Member Oviatt dis-
sented. They note, however, that factors that led them to dissent in
Motor Convoy—for example, an issue concerning the legality of the
contract clause construed in the arbitration award—are not present
here, and that the decision here is fully in accord with relevant
Board precedent. See, e.g., Dennison National Co., 296 NLRB 169
(1989).
1 At that time, Respondent’s Hourly Employees Handbook, Jt.
Exh. 5, contained the following:
SMOKING
In certain areas of the Plant employees are permitted to smoke
while at work. There are restricted areas plainly marked by ap-
propriate ‘‘NO SMOKING’’ signs in which no smoking is per-
mitted. Matches, ashes and stubs must be deposited in the proper
receptacles provided for this purpose.
The continuation of the smoking privileges during working
hours is dependent upon the observance of safe smoking habits
by employees. The Company will from time to time establish
additional restricted areas and change existing restricted areas.
RULE #22
Smoking in prohibited areas.
1st OFFENSE—Warning
2nd OFFENSE—One Week’s Suspension
3rd OFFENSE—Discharge
2 The handbook was eventually modified, Jt. Exh. 6, to read as fol-
lows:
The Hoover Company and International Brother-
hood of Electrical Workers, AFL–CIO, Local
No. 1985. Case 8–CA–23035
May 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 30, 1991, Administrative Law Judge
John H. West issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Melvin E. Feinberg, Esq. and Christine Hoffer, Esq., for the
General Counsel.
John D. Jolliffe, Esq. and G. Randall Ayers, Esq. (Black,
McCuskey, Souers & Arbaugh), of Canton, Ohio, for the
Respondent.
William Gore, Esq., of Akron, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. Upon a charge
filed September 12, 1990, by the International Brotherhood
of Electrical Workers, AFL–CIO, Local No. 1985 (Union)
against The Hoover Company (Respondent), a complaint was
issued February 27, 1991, alleging that Respondent violated
Section 8(a)(1) and (5) of the National Labor Relations Act
(Act) in that Respondent refused the Union’s March 28, 1990
request to negotiate concerning Respondent’s proposed
changes to its no-smoking policy, which allegedly is a man-
datory subject of bargaining, and on September 9, 1990, Re-
spondent unilaterally, without bargaining with the Union, im-
plemented a no-smoking policy. In its answer, Respondent
admits that it unilaterally and without bargaining imple-
mented the proposed change to a specified work rule. It de-
nies that this was a mandatory subject of bargaining and it
asserts that had it been, any such bargaining duty was
waived by the Union and precluded by collateral estoppel
and precedent of the National Labor Relations Board
(Board).
A hearing was held in Canton, Ohio, on June 25, 1991.
Upon the entire record in this case, including my observation
of the demeanor of witnesses and consideration of the briefs
of General Counsel and the Respondent, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Delaware corporation with an office and
place of business in North Canton, Ohio, has been engaged
in the manufacture of household cleaning appliances. The
complaint alleges, the Respondent admits, and I find that at
all times material herein, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and the Union has been a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
There has been a collective-bargaining relationship be-
tween the Respondent and the Union for over 20 years. The
current collective-bargaining agreement is effective from July
8, 1988, to June 1, 1992. (Jt. Exh. 4.)
When the Respondent mentioned during the 1988 contract
negotiations that it would be implementing a no-smoking
policy in the future the Union indicated its opposition and a
desire to bargain over this at the appropriate time.1
On January 2, 1990, Respondent implemented a smoking
ban for all salaried employees.
Also in January 1990 James Cook, Respondent’s industrial
relations manager in North Canton, informed union rep-
resentatives that the Company was going to implement a no-
smoking rule. Once again the Union indicated that it would
not go along with such a rule.
On February 27, 1990, Respondent told the Union that the
Company would be implementing a no-smoking rule which
would ban smoking in all areas of the plant, except the em-
ployee parking lots, and that the disciplinary action for the
violation of the rule, which is set out in the Hourly Em-
ployee Handbook, would be modified.2 As indicated in Gen-
525HOOVER CO.
RULE #22
No smoking within company premises. (Except parking lots)
1st OFFENSE—Warning.
2nd OFFENSE—Warning.
3rd OFFENSE—One Week’s Suspension.
4th OFFENSE—Discharge
3 In 1981 the Union filed a grievance and an unfair labor practice
with the Board concerning the Company’s right to unilaterally im-
plement and amend work rules. The involved Regional Director of
the Board declined to issue a complaint based on his determination
that further proceedings on the charge should be administratively de-
ferred for arbitration under the Collyer Insulated Wire, 192 NLRB
837 (1971), revised guidelines. Jt. Exh. 10. The arbitrator handling
that grievance examined the management-rights clause, which had
advance notice to the union language but did not at that time contain
the 30 days’ advance notice requirement, and the bargaining history
and concluded that the Company did have the right unilaterally to
change the rules set forth in the hourly employee handbook. The
Board did not take any further action regarding the 1981 unfair labor
practice charge. During the 1983 negotiations, the Company and the
Union negotiated with respect to, among other things, the right of
the Company to unilaterally implement and amend work rules, and
it was agreed that the Company would maintain its right to unilater-
ally establish and from time to time amend rules and regulations and
the Union would be given 30 days’ notice of any such change. 4 Case 5:90CV1036.
eral Counsel’s Exhibit 2, the smoking ban, except in parking
lots, was to become effective on June 11, 1990.
On March 28, 1990, James Repace, then president and
business manager of the Union, forwarded a letter (Jt. Exh.
1), to Cook indicating a desire ‘‘to enter into negotiations for
the sole purpose of negotiating this no smoking policy.’’ By
letter dated March 28, 1990 (Jt. Exh. 2), Cook replied to
Repace, in part, as follows:
As you know, this is a factory rule change and is
covered by Management Rights Paragraph 18, Page 8,
of the current labor contract.
Factory rules and regulations are not subject to nego-
tiations so we must decline your request to bargain this
issue.
If, however, you wish to meet to express your opin-
ions and views of the no-smoking policy, we will set
up such a meeting at your request.
The management-rights clause in the collective-bargaining
agreement in effect at the time, Joint Exhibit 4 at pages 7
and 8, reads, as here pertinent, as follows:
The Company shall have the exclusive rights, among
others . . . to establish and from time to time to amend
rules and regulations not inconsistent herewith . . . .
All factory rules and regulations now in force shall re-
main in effect until amended or superseded. The Union
will be notified in advance of any change in existing
factory rules and regulations. The Union will be noti-
fied no less than thirty (30) calendar days in advance
of any change in existing factory rules and regulations
contained in the Hoover Hourly Employees Handbook.3
On March 30, 1990, Thomas Sack, Respondent’s manager
of labor relations, forwarded a letter to Repace indicating
that the no-smoking rule would go into effect on June 11,
1990.
On April 9, 1990, company and union representatives met
with respect to the no-smoking rule. When the Union tried
to propose designated smoking areas, Respondent refused to
discuss the subject.
On April 17, 1990, Repace filed a grievance on behalf of
the Union asserting that ‘‘[s]aid change in Rule 22 is unrea-
sonable, restrictive and unnecessary.’’ (Jt. Exh. 7.) It was
discussed at a grievance meeting on April 25, 1990, with the
union representative asking the company representative if
they could negotiate the policy and the Company refusing.
On June 7, 1990, the Union filed a complaint and a mo-
tion for temporary restraining order and preliminary injunc-
tion (R. Exhs. 12 and 13, respectively), with the United
States District Court, Northern District of Ohio, Eastern Di-
vision,4 requesting that the court restrain Hoover, pending
the resolution of the above-described grievance in the arbitra-
tion process, from implementing a rule which prohibits
smoking within the company premises, except parking lots.
It was agreed by the parties that arbitration on the pending
grievance would be expedited and the Company would not
implement the no-smoking rule pending the arbitrator’s deci-
sion. The Union withdrew its action without prejudice at its
own cost (R. Exh. 14).
On September 4, 1990, the arbitrator, relying on the man-
agement-rights clause, found for the Respondent. (Jt. Exh. 8.)
On September 9, 1990, Respondent implemented the
above-described no-smoking rule. (Jt. Exh. 6, pp. 20 and 29.)
Contentions
On brief, General Counsel contends that the privilege of
smoking was a condition of employment at the time the cur-
rent collective-bargaining agreement was negotiated and,
therefore, the implementation of the policy prohibiting smok-
ing by employees in any area of Respondent’s facility must
be a mandatory subject of bargaining; that the Board in
Johnson-Bateman Co., 295 NLRB 180 (1989), found that the
management-rights clause involved in that case, which in-
cluded the right to, among other things, ‘‘issue, enforce and
change Company rules,’’ was not a waiver by the union in-
volved there of its right to bargain about the employer’s im-
plementation of drug/alcohol testing requirements; that for
there to be a waiver the Board requires a showing that the
issues were fully discussed and consciously explored during
negotiations and that the Union conspicuously yielded or
clearly and unmistakably waived its interest in the matter;
that the language of the involved management-rights clause
does demonstrate that the Union intended to waive its rights
to bargain over all rule changes; that during the 1983 nego-
tiations the Union advised the Respondent that the reason for
the 30 days’ notice to the union provision was to give it an
opportunity to negotiate a proposed rule; that during the
1988 negotiations the Union specifically reserved its right to
bargain over any proposed no-smoking rule for unit employ-
ees; that since the Board, in Bath Iron Works Corp., 302
NLRB 898 (1991), held that only changes which are deemed
‘‘material, substantial or significant changes’’ trigger a duty
to bargain under the Act, the Union did not waive its right
to bargain by not requesting to bargain when Respondent re-
located or otherwise changed a prohibited smoking area in
the past; that even if the Union acquiesced in Respondent’s
previous implementation of plant rules, the Board has held
that a right once waived is not lost forever; that any claim
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the Union’s request to bargain was not timely is spe-
cious and without merit; that the Board should not defer to
the arbitrator’s decision in this case because the arbitrator
was not presented with the general facts necessary to resolve
the unfair labor practice; that the issue before the arbitrator
was the reasonableness of the no-smoking rule and he deter-
mined that the no-smoking rule was a reasonable rule per-
mitted by the management-rights clause; that while the arbi-
tration proceedings were fair and regular and all the parties
agreed to be bound by the arbitrator’s award, he did not de-
cide whether Respondent, by refusing to bargain and by tak-
ing unilateral action, violated Section 8(a)(1) and (5) of the
Act, which requires a determination of whether the Union
has waived its statutory right to bargain about the no-smok-
ing rule; that the issue of waiver was not presented to or
considered by the arbitrator; that the arbitrator interpreted the
management-rights clause in light of a 1982 arbitration
clause and the 30-day notice provision was added to the
management-rights clause because of the 1982 arbitration
award; that deferral is inappropriate since the arbitrator was
not presented with the facts relevant to resolving the unfair
labor practice; and that, accordingly, the arbitrator’s award is
‘‘palpably wrong’’ and it is inconsistent with fundamental
Board and court concepts of waiver and thus repugnant to
the Act.
Respondent, on brief, argues that the Company’s right to
adopt and amend work rules pursuant to the labor agreement
between the parties, as decided by the arbitrator in Sep-
tember 1990, meets the Speilberg Mfg. Co., 112 NLRB 1080
(1955), Olin Corp., 268 NLRB 573 (1984), standard for
postarbitration deferral, and therefore, this matter should be
deferred to the arbitrator’s decision; that a prerequisite to rul-
ing upon the reasonableness of rule 22 was a finding by the
arbitrator that in fact the Company had the unilateral right
to implement new or revised work rules; that, therefore, one
of the contractual issues before the arbitrator, namely, wheth-
er the Company had the unilateral right to implement and re-
vise work rules, is factually parallel to the unfair labor prac-
tice issue of whether the Union waived its right to bargain
concerning same; that the arbitrator was presented generally
with the facts relevant to resolving the unfair labor practice;
that with respect to the repugnancy standard, the arbitrator’s
conclusions, though perhaps different from what the Board
would have concluded de novo, is reasonably based on the
express language of the labor agreement and the bargaining
history between the parties, and the arbitrator’s award is not
clearly repugnant to the Act; that The Hoover Company did
not violate the Act when it unilaterally implemented revised
Rule 22, since the Union clearly and unmistakably waived its
statutory right to bargain such matters; that there is express
waiver based on the language of the labor agreement in that
the management-rights clause does contain the requisite spec-
ificity for a waiver of the right to bargain over the imple-
mentation of new work rules or the revision of existing work
rules; that there is implied waiver based on the bargaining
history between the parties; that the Union attempted to re-
move the right of the Company to unilaterally establish and
amend work rules during the labor negotiations in 1968,
1980, and 1983 and the Union clearly understood the mean-
ing of the management-rights clause when it agreed to this
provision during the 1986 and 1988 negotiations; and that
the Union waived its rights by action or inaction in that it
obtained the relief requested in the Federal court proceedings
and, therefore, its dismissal of the Federal court action con-
stitutes a waiver of its right to bargain or to dispute the
Company’s unilateral right to implement new or revised
work rules.
Analysis
Before getting to the merits, a procedural matter must be
treated. General Counsel has filed a motion to strike portions
of Respondent’s brief contending that the 13 challenged por-
tions are in no way supported by the record and are clearly
prejudicial to General Counsel. The Charging Party joins in
the motion. In reply, Respondent assets that the first 11 chal-
lenged items relate to the genesis of the no-smoking rule and
were provided by way of background; that many of the mat-
ters are expressly referenced or referred to in General Coun-
sel’s Exhibit 2, the Revised Implementation Schedule for
Factory No-Smoking Policy, and Joint Exhibit 8, the above-
described 1990 arbitration award; that regarding the last two
challenged items, General Counsel’s objection is based strict-
ly on semantics in that it is accurate that the court did refuse
to issue a temporary restraining order and that since Cook
agreed to the proposal to have the Company delay the imple-
mentation of the involved rule, he did represent the Company
in the Federal court proceedings by binding it to a settlement
agreement which ultimately resulted in an expedited arbitra-
tion hearing; that General Counsel does not refute the valid-
ity or accuracy of the challenged statements; and that Gen-
eral Counsel’s statement that the challenged statements are in
no way supported by the record is inaccurate and, therefore,
the motion should be denied. Some of the challenged items
are referred to in the record. The remainder will be treated
as argument and not proposed findings of fact. Accordingly,
the motion to strike will be denied.
Whether The Hoover Company has the right to unilaterally
change certain of its work rules under the terms of its man-
agement-rights clause has been decided by two arbitrators,
both of whom found in favor of the Company on this point.
As noted above, the Board made a prearbitration deferral
under Collyer with respect to the first arbitrator. Here the
Board is being requested by Respondent to make a
postarbitration deferral under Olin.
In his award, dated January 5, 1982, Arbitrator
Strasshofer, as here pertinent, made the following findings:
The arbitrator finds that the company did have the
right unilaterally to change the rules set forth in the
Hoover Hourly Employee’s Handbook effective June
15, 1981. Although a strenuous effort was made by the
Union to show the gradual development of an alleged
past practice by which the parties would negotiate rules
changes, the arbitrator finds that that effort fell far short
of its goal. The language of the management-rights
clause is very clear in granting to the company the right
‘‘to establish and from time to time amend rules and
regulations not inconsistent herewith, and to maintain
the efficiency of its working forces. . . .’’ That lan-
guage has remained in effect for many years. In 1966
the union was able to negotiate an additional provision
in the management-rights clause to provide that the
union would be notified in advance of any change in
existing factory rules and regulations. There is no argu-
527HOOVER CO.
ment that the union has been notified of changes, al-
though it has not in all instances been given sufficient
opportunity to comment on the changes prior to their
implementation.
The union’s attempt in 1980 to negotiate a basic
change with respect to the company’s right to revise
and amend the rule book demonstrates its uncertainty as
to any alleged right to force the negotiation of changes,
and its present argument that the rule book is a ‘‘sub-
agreement.’’
The lengthy testimony concerning the discussions
about rule changes which more or less coincide with
the negotiations of a new contract establishes, on bal-
ance, that the company representatives made an almost
completely consistent effort to distinguish the discus-
sion of rule changes from the negotiation of contract
clauses. In fact, the union eventually withdrew its de-
mand to change the express language of the manage-
ment-rights clause, although it has persevered in efforts
to discuss various specific rules which it believes need
clarification or revision. The testimony indicated that
the company has attempted to accommodate those sug-
gestions, but it never felt itself obligated to negotiate
any such suggestions.
As noted above, on brief General Counsel, in the context
involved herein, challenges the award of the second arbi-
trator, Nathan Lipson, because he interpreted the manage-
ment-rights clause in the light of the 1982 award. Assertedly,
since the 30-day provision was added to the management-
rights clause because of the 1982 arbitration award, the de-
ferral herein is inappropriate as arbitrator Lipson was not
presented with the facts relevant to resolving the unfair labor
practice. The 30-day provision has no real effect on the 1982
award. Before that, the Company was required to give ad-
vance notice to the Union. But as arbitrator Strasshofer
noted, ‘‘the union has been notified of changes, although it
has perhaps not in all instances been given sufficient oppor-
tunity to comment on the changes prior to their implementa-
tion.’’ The 30-day notice period accords the Union sufficient
time to comment. It was not shown herein that it accom-
plishes anything else.
Arbitrator Lipson, in his September 1990 award, made, as
here pertinent, the following findings:
The Union has processed the instant grievance on the
basis that since it is the ‘‘sole collective bargaining
agency’’ for the production and maintenance employees
bargaining unit, the Company was obligated to nego-
tiate any Rule #22 change. However, a reading of Sec-
tion 18 [the management-rights clause] does not support
said position. Indeed, the Company has specifically bar-
gained ‘‘the exclusive rights, among others—to estab-
lish and from time to time to amend rules and regula-
tions not inconsistent’’ with the collective bargaining
agreement. Further, it has been agreed that changes ‘‘in
existing factory rules and regulations contained in the
Hoover Hourly Employees Handbook’’ may be effected
provided that the Union receives thirty calendar days
notice.
Any doubt on this score is removed by the Award
and Opinion of Arbitrator Strasshofer [who] having
considered contract language identical to present Sec-
tion 18, except for the [30 day] notice requirement, held
that ‘‘the Company did have the right unilaterally to
change the rules set forth in the Hoover Hourly Hand-
book.’’
Nor can the right to smoke in the plants be viewed
as a protected practice or working condition. For years
smoking has been governed by the Hoover Hourly Em-
ployees Handbook. Since smoking is not addressed in
the collective bargaining agreement, it must again be
said that by the terms of Section 18, the Company has
reserved the general right to control employee smoking
on its properties.
. . . .
. . . given the evidence presented by the parties and the
language of Section 18, it must be concluded that the
Union did not meet its burden of showing that the new
Rule #22 is unreasonable.
A majority of the Board in Motor Convoy, 303 NLRB
135, 136, 137 (1991), concluded, as here pertinent, as fol-
lows:
The Board will defer to an arbitration award when
the proceedings appear to have been fair and regular,
all parties have agreed to be bound, and the decision
of the arbitrator is not clearly repugnant to the purposes
and policies of the Act. Spielberg Mfg. Co., 112 NLRB
1080 (1955). Additionally, the arbitrator must have con-
sidered the unfair labor practice issue which is before
the Board. Raytheon Co., 140 NLRB 883 (1963). In
Olin Corp., 268 NLRB 573, 574 (1984), the Board
clarified that an arbitrator has adequately considered the
unfair labor practice if (1) the contractual issue is factu-
ally parallel to the unfair labor practice issue, and (2)
the arbitrator was presented generally with the facts rel-
evant to resolving the unfair labor practice. The Board
will find deferral inappropriate under the clearly repug-
nant standard only when the arbitrator’s award is ‘‘‘pal-
pably wrong,’ i.e., . . . is not susceptible to an interpre-
tation consistent with the Act.’’ Ibid. The party seeking
to have the Board reject deferral bears the burden of
proof. Ibid.
. . . .
In determining repugnancy, the Board will weigh the
difference, if any, between the contractual standard
used by the Board. Olin, supra at 574.
. . . .
The test under Olin . . . is whether the arbitral opinion
is susceptible to an interpretation consistent with the
Act.
. . . .
Thus, for example, if an arbitrator upholds an employ-
er’s argument that its actions were justified by a con-
tractual management-rights clause, the Board, in an
8(a)(5) unilateral change case, would defer to the
award, even if neither the award nor the clause read in
terms of the statutory standard of clear and unmistak-
able waiver. The award is susceptible to the interpreta-
tion that there was such a waiver, even though the con-
tract and the award do not read in these terms.
. . . .
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
In Dennison National Co., 296 NLRB 169 (1989), an
arbitrator found that, under the contract’s management-
rights clause, an employer was privileged to make a
unilateral change. The General Counsel argued that the
award was repugnant because the arbitrator failed to
use the statutory standard of whether the management-
rights clause clearly and unmistakably waived the right
to bargain. In spite of the difference in the standards,
the Board deferred.
General Counsel concedes that the involved 1990 arbitra-
tion proceedings were fair and regular and that the parties
agreed to be bound by the arbitrator’s award. Based on the
Board’s conclusions in Motor Convoy, the involved 1990 ar-
bitration award is not repugnant to the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce as al-
leged.
2. The Union is a labor organization as alleged.
3. Respondent did not violate the Act as alleged.
4. The complaint will, therefore, be dismissed in its en-
tirety.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
I recommend that the complaint herein be dismissed in its
entirety.