The Bell Telephone Co. of Pennsylvania

National Labor Relations Board - Board DecisionsNov 15, 1974

214 N.L.R.B. 980 (N.L.R.B. 1974)

980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Bell Telephone Company of Pennsylvania and Federation of Telephone Workers of Pennsylvania, Local 56, Branch 1 and James E. Pierce . Cases 6- CA-6633 and 6-CA-6811 ted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. November 15, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On May 8, 1974, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceed- ing. Thereafter, the Charging Parties filed exceptions and supporting briefs. Respondent filed an answer- ing 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 briefs 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 complaint be, and it hereby is, dis- missed in its entirety; provided, that: The Board shall retain jurisdiction of this proceed- ing for the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after issuance of this Decision and Order, either been resolved by amica- ble settlement in the grievance procedure or submit- 1If a preponderance of the evidence indicated that the facts were as stated by our dissenting colleague, we might agree that the Employer prom- ised to impose no discipline for the unprotected work stoppage other than docking the men for the lost time However, the record does not contain sufficient evidence upon which to base a finding that any such commitment was made The testimony concerning this matter was given only by employ- ees and is entirely consistent that the employees wanted to discuss changes in the work rules but were told that such discussions would be held individ- ually later, they were instructed to return to work or be held individually responsible for their actions and, in response to an employee inquiry stated by one witness to be how to charge the time and by another to be "what would happen to us," they were told they would be docked an hour and lose their 10-minute coffee break that morning, but there was no further discus- sion at all concerning further discipline The only possible suggestion that the loss of an hour's pay was a "discipline" is in the leading question to the president of the western division of the Union "What was said about dis- ciplining the men " to which he responded "He said that the last he had heard, they may dock the men for one hour MEMBER JENKINS, dissenting: I would not defer to arbitration in this proceeding because, in my judgment, the Respondent's actions preclude it from relying on the collective-bargaining agreement as a defense to the alleged violations of employees' statutory rights. The facts are uncomplicated. On February 27, 1973,2 36 of the Respondent's employees engaged in a brief, but unprotected, work stoppage. While the work stoppage was in progress, Union President Pierce, at the Respondent's insistence, advised the men that they should go back to work. This prompt- ed an inquiry from the men as to what, if any, penal- ties would result from their action. The Respondent, through Union President Pierce, advised the men that they would be docked 1 hour for the time they lost as well as 10 minutes of their coffeebreak. With this understanding, the men returned to work with- out further incident. Then on March 5, some 6 days later, the Respondent informed the 30 employees who engaged in the work stoppage that they were each being suspended for 1 day as a disciplinary measure and Union President Pierce was informed that he would be suspended for 2 weeks because of his failure to meet his responsibilities as a union offi- cer in connection with the strike. The suspensions were the subject of a grievance filed by Pierce under the contract and although the grievance was pro- cessed through the initial stages of the procedure, the matter was not taken to arbitration because the Lo- cal Union's parent Federation advised Pierce that the time for invoking the arbitration procedures had run out.' Pierce then filed charges with this Board and a complaint issued alleging violations of Section 8(a)(1) and (3) of the Act with respect to the suspen- sions imposed upon Pierce and the other employees who participated in the work stoppage. What I find significant is the fact that the parties attempted to and did resolve the dispute arising out of the work stoppage. While the Respondent had many avenues open to it in dealing with an unpro- tected strike, it chose an approach designed to get the employees back to work again as quickly as possible and the employees, in turn, no doubt recognizing the implications of their action, sought protection from disciplinary action. Thus, the bargain was struck. As the quid pro quo for the employees returning immedi- 2 Unless otherwise indicated, all events occurred in 1973 3 Only the Federation and the Respondent have the right under the con- tract to call for arbitration of a dispute 214 NLRB No. 144 THE BELL TELEPHONE COMPANY OF PENNSYLVANIA 981 ately to work, the Respondent promised to only dock them for the time lost during the work stoppage. Such a settlement should not be permitted to be voided merely because at some later stage one of the parties feels that a more favorable disposition is now possible. That is why historically the Board and the courts have applied the doctrine of condonation to prevent an employer from misleadingly agreeing to return its employees to work and then taking discipli- nary action for something apparently forgiven.4 In my opinion, the Respondent's settlement with its employees precludes it from relying on the unpro- tected nature of the work stoppage as a basis for the additional discipline. But an arbitrator is required to resolve the issues before him under terms of the col- lective-bargaining agreement and we can have no as- surance that he would apply the doctrine of condo- nation to the same extent as would the Board or a court. In any case, when, as here, there is no contract question properly involved, there is likewise no prop- er role for the arbitration process. We are concerned here with a pure statutory rights which it is our func- tion and obligation to resolve under our Act. I would decline to defer to arbitration in this pro- ceeding and remand the case to the Administrative Law Judge for a complete hearing on the merits. 4 Packers Hide Association, Inc, 152 NLRB 655 (1965) 5 The fact that the contract contains a provision prohibiting discrimina- tion because of membership or activity on behalf of the Union and that the grievance was filed pursuant to this provision does not alter my view The provision is merely an affirmation of a statutory right which employees possess, not by virtue of the contract, but by Federal law DECISION PAUL E. WELL, Administrative Law Judge On March 27, 1973, James E. Pierce, president of Federation of Tele- phone Workers of Pennsylvania, Local 56, Branch 1, here- inafter called the Union, filed with the Regional Director for Region 6, a charge alleging that Bell Telephone Com- pany of Pennsylvania, hereinafter called Respondent, vio- lated Section 8(a)(1), (3), and (5) by disciplining the said James E. Pierce and 29 other employees because they en- gaged in concerted activities and in order to discourage membership in said labor organization. On June 18, the Union by James E. Pierce, its president, amended the earli- er charge to allege a violation of Section 8(a)(1) and (3) by Respondent by the discipline of Pierce and 29 other em- ployees because of their activities on behalf of the Charg- ing Party and in order to discourage membership in that labor organization. On July 9, 1973, the same James E. Pierce on his own behalf filed a charge (Case 6-CA-6811) alleging that Respondent violated Section 8(a)(1) and (3) by disciplining him because he engaged in concerted activi- ties and to discourage membership in the Union and on August 20, 1973, Pierce, again as president of the Union, filed a second amendment to the original charge (Case 6- CA-6633) dropping from the original charge the allegation with regard to Pierce but leaving intact the allegation as to the 29 other employees. On February 26, 1974, the Acting Regional Director is- sued an order consolidating the cases and on the same day a consolidated complaint and notice of hearing. The com- plaint alleged that Respondent violated Section 8(a)(1) and (3) by the discipline of James Pierce because of his office and activities on behalf of the Union and because Respon- dent believes he was responsible for the union or concerted activities of certain employees. The complaint also alleged that 30 named employees were suspended for 1 day by way of discipline because they engaged in concerted activities and in order to discourage union membership. Respondent answered the complaint admitting the sus- pension of Pierce and the 30 employees but alleging that they were suspended for cause pursuant to the existing agreement between Respondent and the Union. The an- swer denied any violation of the Act. On April 8, 1974, Respondent filed an amendment to its answer adding a "Collyer deferral defense" and attaching to its amendment requests addressed to Region 6 of the Board that the case be deferred to arbitration under the Board's Collyer' doc- trine. On April 11, 1974, the matter came on for hearing before me at Warren, Pennsylvania. All parties were present and represented by counsel. At the opening of the hearing Respondent's counsel renewed its motion that the matter be deferred under the Collyer doctrine to arbitration pur- suant to the terms of the contract in existence between the parties. I took the matter under advisement and the Gener- al Counsel commenced his case-in-chief. At the end of his case-in-chief Respondent moved for dismissal of the case on the grounds that the General Counsel had not made a prima facie case and further again moved that the matter be deferred to arbitration. I put the matter over and informed the parties that I would take both of Respondent's motions under advisement and rule on them either before or at the time the hearing was resumed. I gave the parties a week to file memoranda with me concerning the motion. I have received a brief from Respondent in support of Respondent's motions to dismiss or defer and a brief from the General Counsel, but nothing from the Union. For the reasons stated below, I find and conclude that the purpose and policies of the Act would best be served by deferring to the grievance and arbitration provisions of the contract between the Respondent and the Union. Accord- ingly, I hereby issue the following recommended: ORDER2 The complaint is dismissed in its entirety; provided, however, that jurisdiction over this proceeding is retained for the purpose of entertaining an appropriate and timely 1 Collyer Insulated Wire, 192 NLRB 837 t 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 findings, 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 object ions thereto shall be deemed waived for all purposes 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motion for further consideration upon a proper showing that the dispute has not with reasonable promptness after the issuance of this Decision either been resolved by ami- cable settlement in the grievance procedure or submitted promptly to arbitration, or the grievance or arbitration pro- cedure has not been fair or regular or has reached a result that is repugnant to the Act. Discussion On February 27, 1973, the 30 employees named in the complaint engaged in a work stoppage which the General Counsel has stipulated was unprotected concerted activity. James E. Pierce, as president of the Local Union charged with the enforcement of the contract between Federation of Telephone Workers of Pennsylvania and Respondent, discussed the work stoppage with the men, called upon a supervisor to address the men, and accompanied the super- visor when he did so. He then called a higher supervisor and at the insistence of the higher supervisor advised the men that they should go back to work. The men inquired how to charge the time that they had spent during the work stoppage and were informed by the higher supervisors through the union president that they would be docked I hour for the time they lost as well as 10 minutes of their coffeebreak. The men thereupon went back to work at the urging of Pierce without further incident. On March 5 the 30 men were informed that they would each be suspended for I day as a disciplinary measure due to their engaging in the work stoppage and Pierce was in- formed that he would be suspended for 2 weeks "because you failed in your responsibilities as a union officer in con- nection with a strike which occurred February 27, 1973, at 1701 Allegheny Avenue, Warren, Pennsylvania, which was in violation of the contract. Further instances of failure to meet your responsibilities in connection with work stop- pages could result in your dismissal." On the same day Martin Griglak, division president of the Union, was ad- vised by letter that the disciplinary action had been taken. Respondent's letter further stated. You are further advised that the Company expects the Union to follow the grievance procedure. Any addi- tional reaction on the part of your officers and/or members to resolve disputes by a work stoppage in violation of the contract could result in damage charges against the Western Division, and additional disciplinary action, including dismissal, against union officers and/or members. The contract between the parties states in pertinent part: Paragraph 10.01 "any complaint or dispute arising be- tween any employee and the Company shall be pre- sented by the employee or by the representative of the Union to the immediate supervisor of the employee in an effort to reach a mutually acceptable adjustment." Succeeding paragraphs provide for successive steps for appealing decisions to higher levels of management. Para- graph 10 06 provides in part If at any time a controversy should arise between the Union and the Company regarding the true intent and meaning of any provision of this agreement or regard- ing any claim that either party has not performed a commitment of this agreement, the controversy may be presented for review in accordance with the preced- ing section of this Article "and provides for a last ditch meeting between the Union and the Company, this paragraph further provides" if the controversy is not adjusted to the mutual satisfaction of the Union and the Company at such meeting, either party, no later than 15 days from the end of such meeting, may submit the question under dispute to arbitration in ac- cordance with the provisions of Article XIII of this agreement. Section 10.07 provides in part: Grievance and controversies shall be settled only in accordance with the procedures set forth herein. In a particular case the parties may agree to eliminate any steps in the procedure or change any time limits in this Article. If any step under this Article is not taken within the time limit specified , unless such an agree- ment has been made or the delay is caused by the Company the grievance or controversy shall be con- sidered settled. The instant matter was taken into the grievance proce- dure by the filing by James Pierce of a grievance with Re- spondent. The matter proceeded through the various steps of the grievance procedure to the point where it would normally have gone to arbitration or be dropped. At this point which was reached in July 1973, the union executive board appointed Western Conference President Griglak to be the union arbitrator if circumstances made arbitration necessary with respect to the grievances. Thereafter, imme- diately after the meeting of the Union's executive board, I. C. Glendenning, president of the Federation of Tele- phone Workers of Pennsylvania, wrote Pierce as president of Local 56 stating that in effect the organization was poor- ly informed about the circumstances, but noting that the time for arbitration had contractually run out and that charges should be filed with the National Labor Relations Board. At the hearing Pierce declared that he preferred to have the Board handle the matter rather than to have the Union handle it through arbitration, also at the hearing Glenden- ning testified that the union position is that they preferred to have the Board handle the matter. It is at least inferrable from his testimony that the Union's decision was based on the fact that they felt that Respondent would refuse to arbitrate because of the lapse of time. At the hearing Respondent's counsel on behalf of Respondent offered to arbitrate the matter and declared that in Respondent's eyes the time had not run The General Counsel argues that the Board should not defer this matter to arbitration on several grounds. First, under the Seng case,' the Board requires a finding that a 3 The Seng Company 205 NLRB 200 (1973) THE BELL TELEPHONE COMPANY OF PENNSYLVANIA harmony of interest exists between the contracting party, i.e., the Union, and the alleged discnminatee. The General Counsel states that throughout this matter the Union has maintained a position that they are unwilling to take the grievances to arbitration and press the discriminatees' posi- tion in an arbitration proceeding . I reject this argument for two reasons. First of all it is obvious that the Union was not unwilling to take the matter to arbitration, on the con- trary it took the matter up through the grievance procedure to the arbitration step and named its arbitrator There is no evidence that the Union at any time refused to take this matter to arbitration or that there is no community of in- terest between Pierce and the Federation and the Union. The contrary of that is demonstrated in the letter cited above between Glendenning and Pierce which displays a complete harmony of interest between Pierce and the Union. As a second ground the General Counsel contends that Pierce has expressed to the Board throughout its handling of this matter that he is unwilling to acquiesce to arbitra- tion or be bound by an arbitrator's decision if arbitration should be invoked. This was not his position when he filed a grievance, however, and it is clear that his action in the work stoppage that gave rise to the charges herein as well as his actions thereafter in filing and processing the griev- ance until it got beyond his level, both on behalf of the 30 employees involved and himself, clearly reveal his acquies- cence. The record reveals that he would rather take his chances with a Board decision than on an arbitration be- cause of the receipt of the Union of an unfavorable arbitra- tion decision shortly after the events herein complained of took place and relevant thereto. As I stated at the hearing I saw only one man before me when Pierce was on the witness stand, be he president of the Union or "an individ- ual." As president of the Union he filed the charges alleg- ing all of the discrimination; as president of the Union he thereafter amended the charges to allege the discrimination against the 30 men but as an individual he filed the charge alleging discrimination against himself. The Respondent called to my attention the revised guidelines issued by the General Counsel of the Board for use in the Regional Of- fices in cases of this nature which pointed out, in footnote 57, that a party to a contract wishing to avoid arbitration in a dispute involving unlawful coercion or discrimination against individual employees might, instead of filing the 983 charge itself , arrange for an individual discriminatee to file the charge and communicate to the Regional Office his opposition to the resolution of his claim under the contract arbitration procedures as a means of avoiding deferral and circumventing the Board's Collyer policy. The instant case would appear to be precisely the type of case that the Gen- eral Counsel warned his Regions to guard against. I con- sider that Pierce's attempt to wear two hats amounts to no more than an attempt to circumvent the procedure set forth above contained in the contract between the parties. I find that this procedure requires that this grievance be submitted to the grievance procedure between the parties. Finally, the General Counsel and the Union argue that the case should not be dismissed in favor of the grievance and arbitration proceeding because the issue here differs from the issue that would be before an arbitrator However the grievants filed charges of a violation by the Employer of paragraph 12.01 of the contract which provides: The Company will not discriminate against any em- ployee because of membership in or activity on behalf of the Union. This appears to be precisely the issue before the Board and obviously would be the issue before the arbitrator. Howev- er, the Union and the General Counsel contend the arbi- trator is not bound by the Board decisions regarding con- donation and accordingly the Spielberg principles will not be met. The Spielberg principles require only that the arbi- tration be fair and regular on its face and the decision not repugnant to the Act which we administer . There is no reason to believe either way that an arbitrator will or will not accept or consider the principle of condonation in a determination, if he must reach it, that Respondent insti- tuted discipline against Pierce and his 30 followers in viola- tion of the Company's contractual duty not to discriminate against employees because of their union or concerted ac- tivities. The basic issue is that usually considered by the Board and it is not inconceivable that the arbitrator will give it due consideration. We have here a case where the parties attempted by con- tract to provide that all complaints, disputes, or controver- sy between the Union or employees and the Company shall be resolved by its grievance procedure. If ever there was a case where the Board should order deferral, this is it.