Malrite of Wisconsin, Inc.

National Labor Relations Board - Board DecisionsOct 4, 1974

213 N.L.R.B. 830 (N.L.R.B. 1974)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Malrite of Wisconsin , Inc. and Wisconsin Broadcast Engineers, Local #715, International Brotherhood of Electrical Workers. Case 30-CA-1182 October 4, 1974 SUPPLEMENTAL DECISION On July 18, 1972, the National Labor Relations Board issued its Decision and Order in this case' dismissing the complaint in its entirety, and deferring to the award of the arbitration panel notwithstanding the Respondent's failure to comply with the award. Thereafter on March 29, 1974, the Court of Appeals for the District of Columbia affirmed in part and denied in part the petition for review and remanded the case to the Board. The court held that the Board could defer to the grievance and arbitration proce- dure in such circumstances except with respect to a part of the case which had not been considered by the arbitration panel. Having accepted the remand of this case, the Board issued a notice to the parties request- ing statements of positions. Thereafter the General Counsel and the Respondent each filed a statement. Upon the entire record in this case, including the statements of positions and Respondent's earlier ex- ceptions and brief, the Board finds: The Respondent purchased the radio station in- volved herein on May 1, 1968, assuming the collec- tive-bargaining agreement executed by its predecessor. The agreement authorized employment of one engineer-announcer on the late night shift. However, the Respondent began in December 1968 to operate its day and evening programs using the com- bo operators. The Respondent sought and received from two of its engineers written consent to perform combo duties, but did not apprise the Union of what it was doing. The Union protested, and the matter went to arbitration. After the arbitration hearing but prior to the issuance of the arbitration award, the Respondent assigned Morgan Hill, Edward Couzens, and Robert Schwartz as combo operators. The three had been employed by the Respondent as announc- ers. Respondent secured a written consent from each individual but again did not seek concurrence from the Union. In January 1970 the arbitration panel is- sued its decision and award sustaining the Union's position that the Respondent violated the collective- bargaining agreement by assigning combo operators to the day and evening shifts. The Respondent took no action to comply with the award and on February 3, 1970, the Union filed the unfair labor practice charge herein. The Union never sought to enforce the ' 198 NLRB 3 (1972). arbitration award in the courts. The Board dismissed the complaint in its entirety on the basis of the Spielberg 2 doctrine, indicating that the Board was deferring to the entire arbitral process including the enforcement of arbitration awards. The Union petitioned the court of appeals to set aside the Board's Order. The court held that the Board acted within its discretion by deferring to the arbitration award and insisting that the Union pursue judicial enforcement of the award. The court stated, "As long as the remedy of judicial enforcement is available, the force of the Spielberg doctrine is not diminished by one party's disregard for the arbitral award." The court pointed out, however, that the unlawful bar- gaining charge with relation to Hill, Couzens, and Schwartz was based on events which took place after the arbitration hearing. The court found that the arbi- tration panel, therefore, could not have considered the individual agreements and concluded that defer- ral with respect thereto was improper. The Trial Examiner (as Administrative Law Judges were then called) found that Respondent's action in discussing the combo operations with the three indi- viduals and in obtaining their written consents oc- curred in disregard of the Union's status as bargaining agent. He concluded that this constituted individual bargaining which violated Section 8(a)(5) and (1) of the Act. The General Counsel submitted a brief in response to the Board's request for statements of position urg- ing the Board to find a violation and issue a special remedy. The General Counsel contends that the indi- vidual bargaining is a serious violation in complete disregard of the Union's status and must therefore be remedied. The General Counsel states that the Union no longer represents the unit involved herein or any other unit of Respondent's employees. He therefore requests that in addition to the normal cease-and- desist and notice-posting order the Union be author- ized to use the Respondent's bulletin boards and to hold several meetings on Respondent's premises and that notices be sent to the individual unit employees then working for the Respondent. The General Coun- sel states, "It would appear, however, absent the above remedies, the posting of a typical Board notice would be an exercise in futility." Respondent originally excepted to the Trial Examiner's finding that it had engaged in unlawful individual bargaining. Although it did not specifically discuss the issue in its original brief, Respondent con- tended therein that its change to the combo arrange- ment was not a modification of the agreement and that, in any event, it had attempted to bargain with the Union about the change. In its statement of position 2 Spielberg Manufacturing Company, 112 NLRB 1080 (1955). 213 NLRB No. 114 MALRITE OF WISCONSIN, INC. 831 the Respondent contends that it did not engage in prohibited individual bargaining because the individ- uals involved herein were announcers outside the unit when the bargaining occurred. Although the record supports Respondent's con- tention that Hill, Couzens, and Schwartz were all an- nouncers outside the unit when Respondent discussed the combo operation with them, that fact is not con- trolling. Respondent received written consent from the individuals to take positions which were within the unit. It is well established that individual bargaining with unit employees or potential unit employees in derogation of a collective-bargaining agreement is proscribed by the Act. In J. I. Case Co. v. N.L.R.B., 321 U.S. 332 (1944), the Supreme Court states: After the collective trade agreement is made, the individuals who shall benefit by it are identi- fied by individual hirings. The employer, except as restricted by the collective agreement itself and except that he must engage in no unfair labor practice or discrimination, is free to select those he will employ or discharge. But the terms of the employment already have been traded out. There is little left to individual agreement except the act of hiring. [at 335.] Individual contracts, no matter what the cir- cumstances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed by the National Labor Relations Act looking to collective bar- gaining, nor to exclude the contracting employee from a duly ascertained bargaining unit; nor may they be used to forestall bargaining or to limit or condition the terms of the collective agreement. [at 337.] Having found that the Respondent has violated the Act, we turn to consideration of what is the appropri- ate remedy. In our opinion the special remedy re- quested by the General Counsel is not warranted in this case.' Even had the Board found all the charged violations, this case was not one which originally war- ranted a special remedy. In fact, the Trial Examiner recommended no such remedy. The General Counsel cites the fact that the Union no longer represents any unit of Respondent's employees as reason for now granting the remedy. However, the passage of time and the changed situation are not sufficient in the circumstances of this case for the Board to grant the requested remedy. Indeed, to do so would put the Board in the position of appearing to lend support to the unionization of Respondent's engineers by one particular union regardless of whatever interest an- other union might have. In such matters the Board must be and appear to be scrupulously neutral. The General Counsel also argues that unless the special remedy is given, the usual remedy would be an exer- cise in futility because of the changed situation. We agree, and for that reason we shall not remedy the violation which we have found. We reach this conclu- sion despite the fact that individual bargaining is gen- erally considered to be a serious violation of the Act. We, however, emphasize that the only violation we have found relates to Respondent's individual bar- gaining. We have not and do not find that the Re- spondent violated the Act by changing to combo operations, for we have deferred that aspect of the case to the arbitral award and the process of court enforcement of the award. Thus, we have found a narrow violation based upon the Respondent's ob- taining written consent from the three individuals and not upon the fact that they were employed as combo operators. The record establishes that the Union did not waive its bargaining rights with respect to the three individu- als. The collective-bargaining agreement does provide that the Employer may determine the duties to be performed by engineers, but it also includes the quali- fying phrase that such duties must be "within the jurisdiction of this agreement." Since the contract makes it clear that engineers in the unit are to do only unit work, except for one on the late night shift, the contract does not support Respondent's position that combo operators should be permitted on the day and evening shifts if individual permission is obtained. It is also clear from the record that at no time did the Union approve the change to combo operations. For these reasons, we find that Respondent, by bargaining individually with Hill, Couzens, and Schwartz, violat- ed Section 8(a)(5) and (1) of the Act. CHAIRMAN MILLER, concurring in the refusal to issue a remedial order, but upon separate grounds: As the court of appeals has pointed out, this Board failed to deal with the issue of whether the Respondent's assignment of engineering duties to nonunit employees Hill, Couzens, and Schwartz vio- lated the Act. In my opinion it did not and for that reason I concur in my colleagues' refusal to issue any remedial order. Normally, an employer is, of course, free to deal individually with unrepresented employees-which 3 Members Fanning and Jenkins concur in finding a violation of the Act. However, they would grant the remedy sought by the General Counsel, relying in part on the Board 's decision in H. W. Elson Bottling Company, 155 NLRB 714 (1965), enfd. as modified 379 F.2d 223 (C.A. 6, 1967). Neither Member Fanning nor Member Jenkins concurs in our discussion of the remedy. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hill, Couzens, and Schwartz clearly were. He may assign to such employees any duties he desires with- out violating any provision of this Act. If, however, the result of such assignment of duties is to bring those formerly nonunit employees within the descrip- tion of the category of employees which the union, by virtue of a certification or a voluntary recognition agreement, is entitled to represent, then they are nor- mally deemed to have been accreted to the bargaining unit and the union therefore becomes their exclusive bargaining agent. If, however, at the time of the as- signment or at a timely point subsequent thereto a genuine question concerning representation arises, this Board will, upon the filing of a proper and timely petition, resolve that question, and the issue of wheth- er the employer has a duty to bargain with the union for the expanded unit will be dependent upon the outcome of the representation proceeding. Further- more, if there is a question as to whether the assign- ment of duties has, in fact, resulted in the employees' having been brought within the bargaining unit, that question, too, can be resolved in a prompt and orderly way in the course of a unit clarification proceeding. Subsequent to the Employer's assignment of some engineering duties to the work performed by the non- unit announcers here, no one raised the only real is- sue; i.e., whether that assignment resulted in an accretion. Instead, the Union took the position that the assignment of unit duties to nonunit personnel was an unfair labor practice-an issue which seems to me to have missed the mark. The complaint here, I would find, was improvident- ly issued. The dispute between the parties as to work assignments to unit employees Bernauer and Over- gaard had, as we and the court have held, been re- solved in the arbitral forum. The assignment of additional duties to nonunit employees Hill, Couzens, and Schwartz did not violate any provision of the Act but may-or, if the duties were sufficiently insignifi- cant, may not-have resulted in their being accreted to the bargaining unit. That question could-and should-have been determined in a representation proceeding. Instead, when negotiations were sought by the Union on April 6, 1970, the issue of whether Hill, Couzens, and Schwartz were to be deemed to be in the unit was raised, disputed, but left unresolved. No party sought to have this Board resolve that issue by means of a unit clarification petition. This very unresolved issue resulted in a stagnation of the bargaining process. We failed to perceive, when this case was previously before us for determination, that this accretion issue was the heart of the dispute as to Hill, Couzens, and Schwartz and instead, as the court has had to remind us, we focused solely on the Spielberg issue , which has no real relevance to the facts regarding Hill, Couzens, and Schwartz. I must accept a full share of the blame for a very tardy perception indeed of what I now believe to have been the real issue.4 Having now perceived it, however, I would dismiss the complaint herein, wishing vainly that it had been dismissed 4 years ago so that the only real issue could promptly have been decided in an appropriate unit clarification proceeding and, if a resulting substantial expansion of the unit had also given rise to a genuine question concerning representation, by an election proceeding as well. MEMBERS FANNING AND JENKINS, dissenting: This case has been remanded to the Board by the court of appeals because the Board majority in its zeal to substitute an arbitration panel's award for a Board decision dismissed unfair labor practices that oc- curred after the panel issued its opinion. Now, in com- pliance with the court's remand, the majority has reconsidered its dismissal of the complaint. The main opinion finds a violation of Section 8(a)(5) with re- spect to the Respondent's individual bargaining with employees Hill, Couzens, and Schwartz, who were persuaded to assume the duties of engineers as well as announcers, contrary to the Respondent's contractual obligations. The concurring opinion concludes that the com- plaint as to these employees was "improvidently is- sued" on the ground that the issue involves no more than a question of accretion to be decided in a unit clarification proceeding. The main opinion reaches the conclusion that no remedy should be provided for the violation of Sec- tion 8(a)(5) because: (a) to provide a special remedy, as requested by the General Counsel, would put the Board in the position of assisting the Union at the possible expense of another union; and (b) to provide the usual remedy would, as the General Counsel sug- gests, be an exercise in futility. It must be noted that the court specifically directed the Board to consider the above charges of individual bargaining and point- ed out to the Board that such unfair labor practices could not be remedied by the judicial enforcement of the arbitration decision. The majority is now telling the court, so be it. The charges with respect to Hill, Couzens, and Schwartz, although found valid, will go unremedied. My dissenting colleagues do not yet perceive it. They speak of an 8(a)(5) violation arising out of a situation in which an employer "unilaterally bar- gains" with a nonunit employee for employment "within the unit ." But no one has yet decided whether the assignment of the additional duties to Hill, Couzens, and Schwartz brought them "within the unit," or whether , if it did, the resultant expansion of the unit gave rise to a question concerning repre- sentation. MALRITE OF WISCONSIN, INC. We do not believe the majority 's decision complies with the court 's remand . Surely , the court did not direct the Board to give further consideration to this case to the end that a violation of the Act would, in any event , be unremedied . The fact that the Union would undoubtedly be assisted by the Board 's Order is hardly a reason to refuse to act. Such assistance is normal and appropriate in every case where a viola- tion of Section 8 (a)(5) is found . And, of course, this is so whether or not the Union in such a case has maintained its majority status. The General Counsel has asked for a modest reme- dy in this case , pointing out that under present cir- cumstances there is probably little that can be done to prevent the Respondent from enjoying the fruits of its unfair labor practices. The Union has been com- pletely defeated . It has exhausted its patience and funds , its unit has been decimated by the Employer's conversion to combo operators , and it no longer rep- resents this unit or any other unit of the Employer's employees . The General Counsel asks that the Board 833 provide its usual order with the normal notice lan- guage , together with a requirement that the Union be authorized , if it so desires , to utilize the bulletin boards for the purpose of seeking to communicate with the combo operators or any remaining engineers. The General Counsel also suggests that the Union be allowed to hold a few meetings on the Employer's premises to attempt to recoup its lost majority. In our opinion , a remedy of this nature is entirely proper and warranted. In response to the concurring opinion , the law is too clear to require citation that where, as here, an em- ployer unilaterally bargains with an applicant or a nonunit employee for employment within the unit on a basis forbidden by his contract with the Union a violation of Section 8(a)(5) has been established, as found by the Administrative Law Judge and majority in this case . A petition for unit clarification would not in these circumstances save the Respondent from a judgment that it had thereby violated this section of the Act.