Sohio Chemical Co.

National Labor Relations Board - Board Decisions

Mar 26, 1963

141 N.L.R.B. 810 (N.L.R.B. 1963)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time off from his night shift so he could be rested for a national board meeting the
next morning . May later informed Foddrill his wife had called to tell him of his
baby's illness. Foddrill , who needed his services that night , told May to bring back
a doctor 's certificate upon his return from home where he went for his evening
meal. May reported back 18 minutes late without a certificate and worked the
remainder of his shift . He was not reprimanded for coming back late. There is no
suggestion in the record that Foddrill denied May 's request for unlawful reasons.
May's father is an official of a union which had nothing to do with the Respondent's
employees . It would be sheer speculation to find that for this reason he was denied
time off. The allegation of discrimination against him is not sustained.
In sum, while the record is replete with evidence of the Respondent 's hostility
to unionization and its coercive efforts to prevent the Teamsters or the Steelworkers
from winning the December 1960 or February 1961 elections I am convinced, find,
and conclude that the record does not preponderate in favor of a finding that the
Respondent committed any of the unlawful actions described in the complaint. I
therefore recommend dismissal of the complaint in its entirety.
Sohio Chemical Company, Acrylonitrile Plant and Oil , Chemical
and Atomic Workers International Union , Local 7-626
Sohio Chemical Company, Nitrogen Plant and Oil , Chemical and
Atomic Workers International Union , Local 7-626. Cases Nos.
8-CA-2682 and 8-CA-2683. March 26, 1963
DECISION AND ORDER
On August 14, 1962, Trial Examiner Stanley Gilbert issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, but recommending that no remedial order issue, as set
forth in the attached Intermediate Report. The Trial Examiner also
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended dismissal
of these allegations. Thereafter, the General Counsel filed exceptions
to the Intermediate Report together with a supporting brief, and
the Respondent filed a brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
[The Board dismissed the complaint.]
I Contrary to our dissenting colleague, the issue here is not whether the Union had a
statutory right to grieve , but whether the Union had a right to invoke the grievance
procedure set forth in the contract between the Union and the Respondent Company
Everyone, including our dissenting colleague, seems to agree that the Respondent was not
required "to deal with such grievances through the grievance procedure " Yet what is
overlooked by our dissenting colleague is the fact that the Union here sought to process
the grievances under the contract Accordingly, this decision does not represent a de-
parture from established precedents , and we also believe that it will promote rather than
discourage collective-bargaining practices The Union 's presence at later stages in the
141 NLRB No. 72.
SOHIO CHEMICAL COMPANY, ACRYLONITRILE PLANT 811
MEMBER FANNING, dissenting :
The essential facts were stipulated by the parties. The Union filed
four grievances which were signed by an official of the Union and not
by an aggrieved employee. The Respondent refused to answer the
grievances and deemed them invalid under the current contract be-
cause they were not signed by an employee or an employee and his
steward.
The current agreements between the parties have a four-step griev-
ance procedure culminating in binding arbitration. The first step
provides that the "employee or the employee and his steward" shall
present grievances. It is silent as to whether or not the Union can
file a grievance. The record further reveals that in the course of
precontract negotiations in 1957, involving a prior contract, the Union
proposed a grievance clause which stated that "the Union or the ag-
grieved employee and the steward" could initiate the grievance proce-
dure. The 1957 contract, as executed, contained the same grievance
provisions as the current contracts, and there is nothing in the record
to show why the Union's proposed grievance clause was not adopted
nor does the record indicate how the inclusion of the agreed-upon
clause came about. On these bare facts the Trial Examiner found, and
the majority agrees, that the Union had impliedly waived its right
to file grievances on behalf of employees.
The dispute here involves essentially the Union's contention that it
can, under established law, file grievances in its own right. The Re-
spondent contends that in view of the precontract negotiations between
the parties and the resulting bargaining agreements the Union has
waived its right to file grievances directly, and that the dispute is
more appropriately a matter of arbitration within the terms of the
contract.
The key to a proper decision in this case lies in the readiness with
which this Board will find an "implied waiver" of a statutory right
from ambiguous and inconclusive terms of a contract. and only frag-
mentary evidence relating to the purpose of their incorporation in
the contract. Up to now, the Board has been unwilling to infer a
waiver absent a clear and unmistakable showing that the waiver ac-
tually was intended? It has consistently held that the mere abandon-
ment of -a bargaining proposal or demand, without supporting evidence
that the demand was fully discussed, fully explored, and consciously
grievance machinery amply protects the Union's bargaining status Moreover, we are
finding, in agreement with the Trial Examiner, that Respondent 's failure to afford the
Union an opportunity to be present in the adjustment of grievances was unlawful The
omission of a remedial order on this aspect stems from our considered judgment that in
the circumstances of this case the finding alone will effectively deter a recurrence.
2 See Beacon Piece Dyeing and Finishing Co., Inc ., 121 NLRB 953 ; Timken Roller Bear-
ing Company, 138 NLRB 15; Gulf Atlantic Warehouse Co., 129 NLRB 42; Speidel Corpo-
ration, 120 NLRB 733, 740--741 ; California Portland Cement Company , 101 NLRB 1436,
1437-1438; Otis Elevator Company, 102 NLRB 770, enf. denied 208 F 2d 176 (C.A. 2) ;
Boston Record -American-Advertiser Division-The Hearst Corvoration , 115 NLRB 1095.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
yielded, is an insufficient basis on which to find the waiver of a statu-
tory right.' No such showing has been made in this case, and I can
only view the majority's decision that a waiver occurred as a serious
encroachment upon the protection heretofore afforded to employees
and their statutory representative. I fail to see to what purpose such
an encroachment has been made. As the Circuit Court of Appeals for
the Sixth Circuit observed with respect to a closely related question : 4
Nor do we see logical justification in the view that in entering
into a collective bargaining agreement for a new year, even though
the contract was silent upon a controverted matter, the union
should be held to have waived any rights secured under the
Act . . . Such interpretation would seem to be disruptive rather
than fostering in its effect upon collective bargaining, the national
desideratum disclosed in the broad terms of the first section of
the National Labor Relations Act....
It is disruptive of collective bargaining because it requires a union,
perforce, to press for its maximum initial demand, lest its compromise
agreement be viewed as a waiver of all statutory rights embodied in
the demand but not finally incorporated in the contract. Impasse,
rather than agreement, is the likely result of such "bargaining."
Moreover, in the instant case, the majority's willingness to infer a
waiver of the Union's statutory right to present a grievance on any
matter as to which an employee can file n grievance involves them in
inconsistent and contradictory findings as to what is necessary to prove
a waiver. The Union had initially proposed a grievance procedure
to be initiated by the filing of a grievance by either the Union or the
employee and his steward. The provision, as it appeared in the con-
tract, eliminated the reference to the Union. The majority finds that
the Union thereby waived its right to present any grievance which
involves an "ascertainable aggrieved employee." At the same time,
the majority adopts the Trial Examiner's finding that the Union has
not given up its right to present grievances which do not involve an
"ascertainable aggrieved employee," and to have them considered out-
side the contract grievance procedure. But if the deletion of the ref-
erence to the Union is a sufficient basis for finding that the Union has
waived its right to present a grievance involving an "ascertainable ag-
grieved employee," even outside the grievance procedure, why does not
such deletion also affect the Union's right to present other grievances
3 The Press Company, Incorporated , 121 NLRB 976 , Tide Water Associated Oil Com-
pany, 88 NLRB 1096 ; The Jacobs Manufacturing Company, 94 NLRB 1214 ; Nash-Finch
Company, 103 NLRB 1695, enf denied 211 F 2d 622 ( CA 8) ; International News
Service Division of The Hearst Corporation , 113 NLRB 1067
* N.L R.B v. J. H. Allison & Company, 165 F. 2d 766 , 768; cert denied 335 U.S 814;
rehearing denied 335 U S 905, enforcing a Board Order that Allison & Co furnish the
representative of its employees with certain information even though it had sought un-
successfully to have a clause incorporated in the contract requiring Allison & Co to
furnish the information
SOHIO CHEMICAL COMPANY, ACRYLONITRILE PLANT 813
in the same way? If the Union's eligibility to file grievances had been
retained in the contract, the Union could initiate any grievance whether
it involved an "ascertainable aggrieved employee"' or not, and could
have such grievances processed through the four-step grievance pro-
cedure. Indeed, in such circumstances the Union could probably not
avoid the grievance procedure in seeking settlement of grievances.
While I agree that, by failing to achieve agreement on its proposal,
the Union failed to secure the right to have grievances it presented
processed through the grievance procedure, I cannot agree that it
gave up its right to present such grievances outside that procedure.
I certainly cannot agree that the Union waived its right as to one
class of grievances and not as to another class. Parity of reasoning
demands that if the Union can now present grievances not involving
"ascertainable aggrieved employees" and can require that the Re-
spondent bargain with it concerning such grievances outside of the
grievance procedure, it has the same right with respect to grievances
involving "ascertainable aggrieved employees." The Union proposed
a provision which would have channeled both classes of grievances
through the grievance procedure. In this it failed, but its failure can-
not mean waiver as to one class , and not as to the other.
For the foregoing reasons, I find that Respondent violated Section
8 (a) (5) by refusing to bargain concerning the merits of the grievances
presented by the Union as alleged in the complaint. I do not hold
that Respondent was required to deal with such grievances through
the grievance procedure. I do hold that it was required to consider
such grievances and to bargain concerning their disposition. I would,
therefore, issue an appropriate order to remedy the violation. More-
over, even were I to agree with the majority premise that the Union
had waived its right to bargain concerning the grievances involved,
I would issue an order requiring the Respondent to cease adjusting
grievances without affording the Union an opportunity to be present.
This is not a trivial violation, nor can I view it as too isolated in charac-
ter to warrant a remedial order, for it is apparent that the Respondent
views its contract as giving it the right to adjust grievances in such
a manner. In these circumstances, and as all Board Members agree
that such action violates Section 8 (a) (5), I believe it is appropriate
to issue an order which will prevent such conduct in the future.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The Oil, Chemical and Atomic Workers International Union, Local 7-626 (here-
inafter referred to as the Local) having filed a charge in Case No. 8-CA-2682 on
January 19, 1962, and in Case No. 8-CA-2683 on the same date, which charges were
amended on April 9 , 1962 , an order consolidating said cases and the complaint herein
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were issued on April 20, 1962.1 In essence, it is alleged that the Sohio Chemical'
Company (hereinafter referred to as the Respondent or Company) violated Section
8(a) (5) and (1) of the Act by refusing to process grievances filed by officers of the
Local and by adjusting the subject matter of such grievances with individual em-
ployees without affording an opportunity to the Local to have a representative
present. In its answer, Respondent alleged that the Oil, Chemical and Atomic
Workers International Union (hereinafter referred to as the International) was the
exclusive representative of the bargaining units in the two plants involved , not the
Local, but admitted that for the several past years it had bargained with the Local
as agent of the International. It denied that it had violated the Act by refusing
to process the grievances on the ground that the grievances had not been filed in
accordance with the grievance procedure provided in the contract between the
Company and the International and Local (collectively referred to in the contract
as the "Union"). The International and the Local will be referred to collectively
as the "Union," in accordance with the practice of the parties as disclosed by the
record. It further denied that its conduct in adjusting the grievances with the
individual employees was violative of the Act, and asserted that its conduct was
consistent with the grievance procedure
A hearing was held before Trial Examiner Stanley Gilbert at Lima, Ohio, on
June 12, 1962, at which the parties stipulated all the facts which any one, or all of
them, considered relevant to the issues raised. The General Counsel and Respondent
filed briefs within time designated therefor.
Upon consideration of the entire record, including the briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is, and has been at all times material herein, a corporation organized
and existing by virtue of the laws of the State of Ohio, with its office and principal
place of business located in Lima, Ohio, where it is engaged in the manufacture and
sale of chemical products . Respondent , in the course and conduct of its operations,
annually ships finished products valued in excess of $50,000 directly to points
outside the State of Ohio.
As is admitted by Respondent , it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATIONS INVOLVED
As is admitted by Respondent , both the Local and International are labor organiza-
tions within the meaning of Section 2(5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
In their briefs the General Counsel and Respondent are substantially in accord as
to what they consider the issues to be. In essence, they are as follows:
1. Whether the Local and International are jointly the bargaining representative
of the employees for the pertinent units in the two aforementioned plants or whether
the International is solely.
2. Whether the Company by rejecting grievances filed under the contract grievance
procedure by officials of the Local (for the reason that they had not been filed by
the aggrieved employees or by such employees and their shop stewards) violated
Section 8(a)(5) and (1) of the Act.
3. Whether by adjusting the errors complained of in two of the aforesaid grievances
with the aggrieved employees without giving a representative of the Local the
opportunity to be present the Company violated Section 8(a)(5) and (1) of the Act.
B. Summary of the stipulated facts
On January 17, 1957, the International was initially certified by the Board as the
bargaining agent for a designated unit in the Nitrogen Plant of the Respondent and
a contract was entered into between the Sohio Petroleum Company (the predecessor
of Respondent in the operation of the plant) and the International and Local (being
'The complaint was amended on April 27, 1962, by adding the allegation that "second
amended charges" were filed by the Local on April 23, 1962
SOHIO CHEMICAL COMPANY, ACRYLONITRILE PLANT 815
jointly referred to therein as the "Union") .2 The present contract with respect to the
Nitrogen Plant (Case No. 8-CA-2683), was entered into on February 17, 1961,
between the Respondent and the International and Local which were also jointly
referred to therein as the "Union." Both the original and the present contract contain
provisions with respect to a grievance procedure leading ultimately to arbitration,
the first two steps in the latter are substantially similar to those which were in the
former. The present contract contains the following language with respect to the
initiation of grievances:
In the adjustment of complaints and grievances which may arise, the employee
or employees shall present the matter in the following manner:
Step 1: The employee or the employee and his steward shall present the matter
in writing within ten (10) calendar days of the occurrence or the knowledge of
the existence of the complaint or grievance, to the aggrieved employee's immedi-
ate supervisor and attempt to arrive at a satisfactory settlement. A written
answer shall be given by the immediate supervisor to the aggrieved employee
and the steward within ten (10) calendar days of the filing of the grievance.
The present contract with respect to the Acrylonitrile Plant (Case No. 8-CA-2682) is
between the same parties as that with respect to the Nitrogen Plant (with the Inter-
national and Local also jointly referred to therein as the "Union")? It contains the
same provisions with respect to a grievance procedure.
1. The grievances in Case No. 8-CA-2682 (Acrylonitrile Plant)
On September 29, 1961, Leo Brown, vice chairman of the Local, Acrylonitrile
group, filed a grievance as a union officer, protesting the method by which Respond-
ent had filled a vacancy on the third shift September 22, 1961. On October 6, 1961,
R. R. Klingler, operating foreman, Acrylonitrile Plant, responded in writing to the
grievance, informing Brown that he, Klingler, did not feel it was a valid grievance
because it was "in violation of the Contract, Article X, Section 1." 4 However,
Klingler also stated:
The vacancy in question was filled according to instruction issued by Mr. W. J.
Springmeier [Process Foreman, Acrylonitrile Plant]. I have consulted with Mr.
Springmeier who stated that he is aware that he filled the vacancy erroneously
and that he has since contacted the parties, namely Messrs. B. E. Taylor and B. D.
Browning, and made arrangements with them for a procedure for compensation.
Because the error related to a failure to call up the low men on the overtime list,
the compensation could have taken the form of permitting the men to come in at
any time in the future and work 4 hours overtime in order to put in the time they
should have been permitted to work, or they could be given 4 hours' pay at time
and one-half without having to work.
Brown carried his September 29, 1961, grievance to the second step of the griev-
ance procedure. On October 17, 1961, W. J. Springmeier notified Brown that Re-
spondent was refusing to answer his second step grievance because it was filed in
violation of the agreement. On November 9, 1961, Ned Ford, group chairman,
Acrylonitrile group, notified G. E. King, general plant superintendent, that the
"Union" was taking the grievance filed by Brown to the third step of the grievance
procedure, as outlined in the agreement. At the November 14, 1961, "union-company
committee" meeting, Brown's grievance was discussed. The Company advised the
"Union" that it had adjusted the error by paying the two aggrieved employees time
and one-half for the 4 hours they would have worked had the error not been com-
mitted. The Company maintained its position that the filing of the grievance was
not in compliance with the contract and the "Union" maintained that a "union officer
may present a grievance."
On October 25, 1961, Ford filed a grievance protesting the answer given by
Springmeier to Brown at the second step of Brown's grievance. Respondent re-
sponded to Ford's grievance at both the first and second steps by stating that Re-
2 The description of the unit has been altered since the original certification, but it is
not material to the issues herein. Originally the plant was operated by the Sobio
Petroleum Company. However, in 1959 operation of the plant was transferred to the
Respondent and the certification was amended to conform to the change.
8 The International was certified by the Board with respect to the Acrylonitrile Plant
on April 7, 1960.
4 Apparently referring to the provision that the grievance shall be filed by "the em-
ployee or the employee and his steward."
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent did not consider it to be a valid grievance , and that Respondent would
not answer it. Ford then notified King that the "Union " was taking his grievance
to the third step . At the December 19, 1961 , union-company committee meeting,
Ford's grievance was discussed , with each side taking essentially the same position
as taken in the November meeting with respect to the Brown grievance.
It is the grievance of Brown's and Ford's related grievance which form the basis
of the allegations of unfair labor practices in Case No. 8-CA-2682 . Because of the
similarity of events and positions taken by the parties concerning grievances filed by
the Local , Nitrogen group (Case No. 8-CA-2683 ) events concerning that group
will be stated prior to a consideration of the issues raised.
2. The grievances in Case No. 8-CA-2683 (Nitrogen Plant)
On October 15, 1961, Fred Britsch , group chairman , Local Nitrogen group,
filed a grievance complaining that Carl Place, a foreman, had performed certain main-
tenance work that should have been assigned to the low men on the overtime list. On
October 23, 1961 , Foreman Place responded to the grievance by stating that, because
it was not filed by an employee or an employee and his steward , the grievance was not
valid. On October 26, 1961 , Britsch took his grievance to the second step and on
November 2 , 1961 , received an oral answer from Respondent indicating that Re-
spondent did not consider his grievance to be valid . On November 9, 1961 , Britsch
notified Respondent of the "Union 's" intention of taking his grievance to the third
step, and his grievance was discussed at the union -company committee meeting on
December 22, 1961, wherein the parties took similar positions to those they took on
the Brown and Ford grievances.
On November 14, 1961 , C. H. Conaway , a union steward , Nitrogen group, filed
a grievance relating to a failure to call in the appropriate man for overtime work.
On November 22, 1961, M. J. Groman, operating foreman, Nitrogen Plant, respond-
ed to Conaway 's grievance and informed Conaway, "An error was made and the
low man on the overtime list was not called . The person that was low on the over-
time list at that time will be contacted and the matter will be settled with him."
The record does not show that any objection was raised by Conaway or any other
"union" representative to Groman 's statement regarding arrangements for settlement.
Subsequently , the low man on the overtime list was paid for the lost time . Although
the Conaway grievance was not formally appealed to the second and third steps,
the matter was discussed at the union -management meeting on December 22, 1961.
In answer to the "Union 's" statement at the meeting that the first -step answer to
Conaway did not indicate "the manner of settlement with the low man ," the Com-
pany responded that at the time of the answer "settlement had not yet been made."
C. Resolution of the issues raised
1. As to Local 's status as bargaining representative
Respondent contends that since the International was certified as the bargain-
ing representative for the units in the two plants involved herein, it need not deal
with the Local . However, since Respondent admits that it has recognized and bar-
gained with the Local as the agent of the International and does not now dispute
its authority to act for the International , it does not appear necessary to resolve this
issue in order to resolve the principal issues herein.
2. As to the filing of grievances
Although the contracts involved herein state that the grievance procedure shall
be initiated by the filing of a "complaint or grievance " in writing by "the employee
or the employee and his steward ," General Counsel contends that Respondent vio-
lated Section 8(a) (5) and ( 1) of the Act by refusing to process grievances filed by
officers of the Local. It is clear from the conduct of the parties that it was understood
that officers of the Local were attempting to invoke the contract procedure by filing
grievances thereunder . Thus, in effect , General Counsel 's position is that the contract
should be construed to include authorization of the bargaining representative to
initiate the grievance procedure . The argument in support thereof is essentially that
in the absence of an express waiver on the part of the bargaining representative, it
cannot be deemed to have waived its statutory right to represent employees in the
presentation and adjustment of their grievances , citing Beacon Piece Dyeing and
Finishing Co., 121 NLRB 953. In the Beacon case the issues were whether the Union
had waived on behalf of the employees it represented the statutory right to bargain
with respect to workloads and wage increases and whether because of the existence
of a contractual grievance procedure the Board had jurisdiction to consider whether
SOHIO CHEMICAL COMPANY, ACRYLONITRILE PLANT 817
the Respondent therein violated the Act by refusing to bargain regarding the action
taken with respect to these matters. The Board stated, (page 961), that "the
collective-bargaining requirement of the Act is not satisfied by a substitution of the
grievance procedure of a contract, unless the grievance provisions of the contract
contain a waiver of the statutory right `expressed in clear and unmistakable terms."'
The grievance provisions of the contracts involved herein do not expressly state
that the "Union" waives the right to initiate grievances on behalf of aggrieved em-
ployees. However, it does not appear that the principle enunciated in the Beacon
case, supra, is applicable to the issues herein.
The instant proceeding does not involve a waiver of the right of aggrieved em-
ployees to present grievances, but a waiver of the right of the "Union" to initiate
the contractual grievance procedure on behalf of such employees. The language
which spells out how the grievance procedure is to be invoked omits any reference
to the "Union" and specifically states the alternatives of a filing by "the [aggrieved]
employee and his steward." Filing by the "Union" would appear to be excluded
by the failure to include it. I am of the opinion that it is appropriate to infer that
the parties understood that the language in the contract was intended to restrict the
"Union" from initiating the grievance procedure. I conclude this, not only because
of the familiar maxim inclusto unius est exclusio alterius, but also in view of certain
facts with respect to the negotiation of the aforementioned 1957 contract. The
"Union" proposed language authorizing it, as well as employees, to initiate griev-
ances. The 1957 contract which was executed contained language substantially the
same as that in the present contracts omitting any reference to the "Union" being
permitted to file grievances. Although there is no showing of what occurred in
the course of the negotiations which led to the revision of the "Union's" proposal,
I believe it reasonable to infer that the deletion of the "Union" from those authorized
to file grievances under the contract procedure was deliberate.
Although there is clearly an implied waiver, General Counsel, relying on the
Beacon case, argues that there must be an express waiver before the Board will find
that a statutory right has been waived. However, the Act does not give a bargaining
representative the right to invoke contractual grievance procedures. Here the Local
was attempting to initiate the contractual procedure despite the absence in the contract
of a provision that it had the right to do so. It is well established that parties to a
collective-bargaining contract may agree upon a procedure for handling grievances.
Such a grievance procdure may restrict the participation of the bargaining repre-
sentative in some of its phases. For example, in Shell Oil Company, etc., 93 NLRB
161, a grievance procedure had been incorporated in the collective-bargaining agree-
ment involved which provided for the handling of grievances through so-called
workmen's committees consisting of employees. The Board found, inter alta, that
the Respondent therein did not violate Section 8(a)(5) of the Act by refusing to
process a grievance in the presence of a representative of the Union. The Board
stated:
... The Local now seeks to nullify this agreement by asking us to hold that it
may at will ignore its contractual arrangement and seek to negotiate grievances
through committees or classes other than that upon which it had agreed.
We do not believe that it would effectuate the policies of the Act to prevent
disruptions to interstate commerce by stabilizing labor relations, to permit such
a disregard of a contractual obligation voluntarily assumed. Such a holding
does not derogate from the principles of collective bargaining. For, in the first
instance, the union is not required to bargain at all with respect to waiving or
restricting its right to be represented by any specific class, regardless of any
employer's insistence . But here the union, either voluntarily or because it yielded
to the normal persuasion attendanct upon good-faith collective bargaining, as
distinguished from the case where yielding is made a condition to the execution
of an agreement,7 willingly bargained with respect to the subject matter in
4 Cf American National Insurance Company, 89 NLRB 185.
question, and agreed to the restriction pursuant to the ordinary give and take
of good-faith bargaining. For us to hold that an employer under these cir-
cumstances violated the Act by insisting that the union honor its contractual
obligation would make a mockery of the collective bargaining in which the
parties in good faith engaged.
The Local is a party to the contracts involved herein by which it impliedly agreed
to restrict the filing of grievances under the contract procedure to aggrieved em-
ployees or such employees and their stewards. To hold that it is also entitled to file
grievances under the contract procedure would require the Board to ignore the
contractual arrangement.
$1$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel apparently argues that if the "Union" is found to have waived
the right to file grievances under the contract procedure, it would be precluded from
requiring the Respondent to bargain with respect to grievable matters which do not
involve an ascertainable aggrieved employee who could initiate the grievance and,
thus, the waiver of a statutory right is involved. I find no merit in this argument
since the contractual procedure can only be considered to embrace those matters
which involve ascertainable aggrieved employees 5 and, therefore, it would follow
that all other grievable matters remain in the general bargaining area under the Act
It does not appear that the "Union" has waived its right to bargain outside of the
contractual procedure with respect to the categories of matters for which the con-
tractual procedure was not designed.
There are four grievances involved herein, the Brown and Ford grievances in
Case No. 8-CA-2682 and the Britsch and Conaway grievances in Case No. 8-CA-
2683. Of these, the first three were rejected because they were not filed by an
employee or an employee and his steward. It does not appear that the Conaway
grievance was rejected, although it was filed only by a steward. Since the three
which were rejected did not meet the contractual requirement as to the method for
filing, it would appear that Respondent was entitled to refuse to process them under
the contract procedure whether or not they were within the category of grievances
relating to ascertainable aggrieved employees .6
3. The adjustments of the grievances
The Brown and Conaway grievances were adjusted by the payment to the em-
ployees who should have been selected for overtime work the amount which they
would have earned had they been selected. Neither the General Counsel nor the
"Union" appears to have any objection to the adjustment made, but General Counsel
contends that Section 8(a)(5) and (1) of the Act was violated by not affording a
representative of the "Union" an opportunity to be present when the Respondent
arranged the adjustments with the three aggrieved employees.?
Having rejected the Brown grievance under the contract procedure, it would ap-
pear that the Respondent, when settling the gravamen of the grievance with the two
aggrieved employees, should have given a representative of the "Union" an oppor-
tunity to be present as required under Sections 8(d) and 9(a) of the Act. Respond-
ent apparently relies on the provisions in "Step 1" of the contract procedure as
authority to have made the adjustment as it did. Assuming that under the contract
procedure settlements can be so made,8 Respondent cannot insist that the contract
procedure may not be initiated by the filing of a grievance by an officer of the Local
and then rely on the contract procedure to make an adjustment with the aggrieved
employee as if the procedure had been initiated. Since the contract procedure had
not been invoked, it would appear that any action with respect to a settlement with
an aggrieved employee should be considered to be subject to the provisions of the
Act and not to the provisions in the contract procedure.
As for the settlement of Conaway grievance, apparently Respondent waived the
defect that the aggrieved employee had not joined with the steward (Conaway) in
filing the grievance. It does not appear whether Conaway was or was not present
when the Respondent settled the grievance with the aggrieved employee as may be
required in "Step 1." In any event, there does not appear to have been any objec-
tion raised at the time to the handling of the Conaway grievance.
While the adjustment of the Brown grievance is technically violative of Section
8(a)(5) and (1) of the Act, I am of the opinion that it is not necessary to issue a
5 The language in the contract with respect to the grievance procedure clearly indicates
that only matters affecting ascertainable individual employees are to be processed under
the contractual procedure. The procedure requires that it be initiated by an aggrieved
employee or such employee and his steward ; the second step must also be initiated by
the employee ; and the third step is initiated by the "Grievance Committee on behalf of
the employee."
Olt would appear that the Brown and Britsch grievances which related to the failure
to assign certain work to the employees entitled to perform it do come within this
category It might be argued that the Ford grievance which protested the rejection of the
Brown grievance is outside the category, but it is of no moment in what category it
belongs
7 Since the record does not disclose any adjustment was made with respect to the other
two grievances, they are not involved in this issue.
8 It is not necessary to pass upon the question of whether under the contract procedure
settlements can be made without affording an opportunity to a representative of the
"Union" to be present
WELLINGTON MILL DIVISION WEST POINT MFG. CO. 819
remedial order herein in order to effectuate the policies of the Act. Respondent's
action in settling the matter with the two aggrieved employees without giving an
opportunity to a representative of the "Union" to be present was apparently predi-
cated upon the mistaken assumption Respondent was entitled to rely upon the provi-
sions in the first step of the contractual grievance procedure. This appears to have
been an isolated incident and to have arisen out of a confusion as to what the rights,
duties, and obligations of the parties are under the contract . Furthermore, the in-
cident appears to have been trivial and there seems to be little likelihood that it will
be repeated. Under the circumstances, I have concluded that no substantial purpose
would be served in requiring the Respondent to take action to remedy its technical
violation of the Act.
Upon the stipulated facts and the entire record in this proceeding , I make the
following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Local and International are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent has not violated Section 8 (a) (5) and (1) of the Act by refusing to
process grievances filed by officers of the Local under the grievance procedure set
forth in its contracts with the Local and International.
4. Respondent violated Section 8(a)(5) and (1) of the Act by adjusting a griev-
ance with two aggrieved employees without giving a representative of the "Union"
an opportunity to be present , when the contractual grievance procedure had not been
invoked and the Respondent had been informed by the "Union" of its interest in
prosecuting the grievance.
Although I have found a technical violation of the Act, for the reasons set forth
above I am not going to recommend that a remedial order be issued , but, instead,
that the complaint be dismissed in its entirety.
RECOMMENDED ORDER
Based upon the stipulated facts and conclusions of law and upon my conclusion
that it is not necessary, in order to effectuate the policies of the Act, that a remedial
order be issued in this proceeding , it is recommended that the complaint herein be
dismissed in its entirety.
Wellington Mill Division West Point Manufacturing Company
and Textile Workers Union of America , AFL-CIO
Wellington Mill Division West Point Manufacturing Company
and Textile Workers Union of America, AFL-CIO. Cases Nos.
11-CA-1821 and 11-CA1823. March 27, 1963
DECISION AND ORDER
On April 27, 1962, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint. Thereafter, the Charging Party and the Respondent filed ex-
ceptions to the Intermediate Report together with supporting briefs.
141 NLRB No. 73.
708-006-64-vol. 141-53