The Massillon Publishing Co.

National Labor Relations Board - Board Decisions

Dec 6, 1974

215 N.L.R.B. 380 (N.L.R.B. 1974)

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Massillon Publishing Company andThe Cleveland
Newspaper Guild , Local No. 1, of the Newspaper
Guild, AFL-CIO. Case 8-CA-7920
December 6, 1974
ORDER DENYING MOTION
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On August 14, 1974, the National Labor Relations
Board issued a Decision and Order in the above-enti-
tled proceeding` in which the Board adopted, with
certain modifications, the findings, conclusions, and
recommendations of the Administrative Law Judge as
contained in his Decision of March 29, 1974, and or-
dered that the Respondent take the action set forth in
the recommended Order of the Administrative Law
Judge as modified.
Thereafter, on September 13, 1974, the Respondent
filed Motions to Reopen the Record and for Reconsid-
eration with a brief in support of said motions. The
Respondent requests that the Board reopen the record
for the purpose of taking newly available evidence (i.e.,
its new collective-bargaining agreement) which, it con-
tends, renders moot the issue of its obligation to process
the Schuster grievance. Specifically, Respondent con-
tends that, while this matter was pending before the
Board, the parties, on April 30, 1974, executed a new
collective-bargaining agreement retroactive to Febru-
ary 25, 1973, a date preceding Schuster's discharge.
This contract, unlike its predecessor, specifically ex-
cluded the discharge of probationary employees, like
Schuster, from the contract's grievance procedures.
Respondent further asserts that, as part of its contract
settlement with the Union, the latter agreed to drop the
Schuster matter. In the alternative, Respondent moved
that the Board reconsider its Order and notice and
conform it more accurately to the limited violation
found. On September 25, 1974, the General Counsel
filed a response and memorandum in opposition to
Respondent's motions, contending, inter alia that Re-
spondent raises issues which are best left to the compli-
ance stage of this proceeding.
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, having fully considered Respondent's
motions and General Counsel's opposition thereto,
agrees with the General Counsel's contention that the
matters raised by Respondent's motions are best left to
the compliance stage of this proceeding.
' 212 NLRB No 137
Contrary to our dissenting colleague, it is well settled
that an employer's execution of a contract with a union
with which it previously refused to bargain in violation
of the Act does not render the issue of such violation
moot.2 This principle is premised on the theory that
the Board does not oversee the settlement of private
disputes but, rather, is entrusted with the responsibility
of protecting public rights under the Act. These rights
are not protected, and the effects of the unfair labor
practices found are not expunged, merely because of a
private settlement of the dispute by the parties, which
may or may not serve to remedy the adverse effect on
the Section 7 rights of the employees.
It is hereby ordered that Respondent's Motions to
Reopen the Record and for Reconsideration be, and
they hereby are, denied as lacking in merit.
CHAIRMAN MILLER, dissenting:
I disagree with my colleagues' disposition of Respon-
dent's motions and, instead, would request the parties
to show cause why the complaint should not be dis-
missed as moot by virtue of the parties' new collective-
bargaining agreement.
In its Decision herein the Board found that Respond-
ent violated Section 8(a)(5) of the Act by refusing to
process the Union's grievance over the discharge, on
July 9, 1973, of employee Schuster. The Board ordered,
inter alia, that Respondent, upon request, process the
grievance under the terms of its then existing contract
with the Union. While the case was pending before the
Board, Respondent and the Union, on April 30, 1974,
executed a new collective-bargaining agreement, ret-
roactive to February 25, 1973, a date preceding Schus-
ter's discharge. This agreement, unlike its predecessor,
specifically provides that probationary employees, like
Schuster, are not entitled to 2 weeks' notice prior to
discharge and may not grieve their discharges under
the established grievance-arbitration provisions.
The Union apparently has not requested Respondent
to process the Schuster grievance under the old con-
tract. Indeed, according to Respondent's motion, the
Union agreed as part of the new contract settlement to
drop the Schuster matter. If this assertion is correct, no
useful purpose would be achieved by protracting this
litigation further,' and in order to provide due process
to both General Counsel and the Charging Party I
would first issue a notice to the parties to show cause
why, under the circumstances here, the complaint
should not be dismissed.
This is not a matter for compliance, as my colleagues
assert, since Respondent does not allege it has complied
with our Order to process either the grievance in issue
2 Southern Tours, Inc., 167 NLRB 363, 364 (1967)
3 See NL.R.B v First National Bank of New Smyrna Beach , 498 F 2d
1400 (CA 5, 1974)
215 NLRB No. 74
THE MASSILLON PUBLISHING CO 381
or future grievances . Quite to the contrary , it instead bona fide reasons, nevertheless renders our Order
has agreed not to do so. But the agreement, if made for moot.