United Aircraft Corp.

National Labor Relations Board - Board DecisionsSep 3, 1974

213 N.L.R.B. 150 (N.L.R.B. 1974)

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Aircraft Corporation (Pratt & Whitney Divi- sion; Hamilton Standard Division) and Lodges 700 and 743, International Association of Machinists and Aerospace Workers, AFL-CIO United Aircraft Corporation (Pratt & Whitney Divi- sion) and Lodge 1746, International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 1-CA-7890 and 1-CA-8626 September 3, 1974 DECISION AND ORDER Upon a charge and amended charge filed on Sep- tember 30, 1971, and June 18, 1973, respectively, in Case 1-CA-7890, by Lodge 700, International Asso- ciation of Machinists and Aerospace Workers, AFL- CIO, and by Lodge 743, International Association of Machinists and Aerospace Workers, AFL-CIO; and a charge filed on October 16, 1972, in Case 1- CA-8626, by Lodge 1746, International Association of Machinists and Aerospace Workers, AFL-CIO (herein referred to collectively as the Unions), duly served on United Aircraft Corporation (Pratt & Whit- ney Division; Hamilton Standard Division) and Unit- ed Aircraft Corporation (Pratt & Whitney Division) (herein called Respondent), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint and notice of hearing on May 31, 1973, Case l-CA-8626, and on July 11, 1973, the Acting Regional Director issued an order consolidating cases, amended complaint and further notice of hearing against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, order consolidating cases, amended complaint and further notice of hear- ing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, para- graph 8 of the amended complaint' alleges, in sub- stance, that commencing on or about June 7, 1972, and at all times thereafter, Respondent did refuse, and continues to refuse, to bargain collectively with, and accord full statutory recognition to, Lodge 1746, as the exclusive collective-bargaining representative of the employees in the appropriate unit in that: (a) on or about June 7, 1972, Respondent, after several re- quests, refused to provide employee James Rizner with the services and presence of a shop steward in connection with his grievance; and (b) on or about 'Hereinafter referred to as the complaint. June 15, 16, July 3, and 20, 1972, and at all times thereafter, Respondent has refused to furnish to Lodge 1746 the standards used by foremen for merit ratings, as well as other information, records, reports, and notebooks made and maintained by Respondent which were relevant and necessary to the intelligent analysis and presentation of grievances by Lodge 1746 and to the proper functioning and normal opera- tion of the existing contract grievance procedure, thereby preventing, frustrating, and limiting Lodge 1746's ability and capacity to effectively utilize said contract grievance procedure. Paragraph 9 of the complaint alleges, in substance, that since on or about July 1, 1971, and continuing to date, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing its employees in the exercise of their rights as guaranteed in Section 7 of the Act, by pretext of en- forcing plant rules concerning employee conduct on company time and property. Respondent has fol- lowed and applied and is continuing to follow and apply at its various plants a continuing, deliberate, and historical pattern of unlawful discrimination and harassment of the Unions' stewards, committeemen, officers, agents, and representatives in order to dis- courage, inhibit, disrupt, and limit said representa- tives, officers, and agents from freely and effectively engaging in protected activity and to otherwise de- grade and disparage said agents, representatives, and officials and the Unions themselves in the eyes of the employees of Respondent, to wit: (a) since on or about July 1, 1971, and continuing thereafter, Re- spondent harassed union and shop stewards of Lodge 743 by subjecting them to excessively close surveil- lance and supervision and unreasonably and discrimi- natorily applied against them, because of their union status and activity, plant work rules relative to em- ployee communications and conduct on company time and property; (b) since on or about July 1, 1971, Respondent harassed union and shop stewards of Lodge 743 because of their union status and activity by subjecting them to onerous jobs and undesirable working conditions; and (c) on or about April 14, 1971, Respondent lied to employees concerning the efforts and activities of Lodge 700 regarding the re- tirement of an employee for the purpose of undermin- ing and degrading employees' support of Lodge 700. With respect to paragraphs 10 and 11, the com- plaint alleges, in substance, that Respondent did on or about July 1, 1971, subject Albert Weingarten to oner- ous jobs and undesirable working conditions for the reason that he joined or assisted the Union or engaged in other concerted activities, including service as a union steward, for the purpose of collective bargain- ing, or other mutual aid or protection. UNITED AIRCRAFT CORPORATION 151 The Respondent filed an answer to the complaint, admitting in part, and denying in part, the allegations therein, and submitting an affirmative defense. On July 25, 1973, the Respondent filed a motion for sum- mary judgment accompanied by a memorandum of law in support thereof, an affidavit, and exhibits, moving the Board for an order dismissing the com- plaint herein, retaining jurisdiction for the sole pur- pose of entertaining an appropriate and timely motion for further consideration on a proper showing that the disputes have not been resolved with reason- able promptness through grievance and arbitration procedures or that such procedures have not been fair and regular. Accordingly, the Respondent requests the Board to grant the motion for summary judgment and dismiss the complaint in conformity with its deci- sion in United Aircraft Corporation (Pratt & Whitney and Hamilton Standard Division), 204 NLRB 879 (1973). Subsequently, on August 3, 1973, the Board issued an order transferring the proceeding to the Board and a notice to show cause why the Respondent's motion for summary judgment should not be granted. Thereafter, the General Counsel filed a response to the notice to show cause; the Unions filed an opposition to the Respondent's motion for summary judgment; the Respondent filed a reply to the General Counsel's response to notice to show cause; the Respondent filed a request for special per- mission to file a motion to take official notice and receive new evidence, with an affidavit and an arbitrator's opinion and award attached; and the Unions filed a response thereto requesting leave to file a cross-motion to receive new evidence, submitting an affidavit and memorandum. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment The thrust of the documents submitted by the Re- spondent allege that the disputes between the parties raised by the allegations of paragraph 8 of the com- plaint have been resolved by arbitration and that, subsequently, the Respondent has taken affirmative action to comply with the Arbitrator's opinion and award insofar as it was found that the Respondent violated the collective-bargaining agreement. Accord- ingly, the Respondent, relying on the arbitration award (United Aircraft Corporation, supra; Collyer In- sulated Wire, 192 NLRB 837; and Spielberg Manufac- turing Company, 112 NLRB 1080), moves the Board to grant the motion for summary judgment and dis- miss the complaint, retaining jurisdiction for the sole purpose of entertaining an appropriate and timely motion for further consideration in the event that these disputes have not been resolved with reasonable promptness or that such procedures have not been fair and regular. Moreover, Respondent points up that no grievances were filed with respect to any of the allegations herein, and that when the Unions filed unfair labor practice charges, it treated the matters as grievances which were subsequently arbitrated. The Unions oppose the motion for summary judg- ment and emphasize that a hearing and a Board order are necessary to properly remedy the violations con- tained in paragraph 8(b) of the complaint respecting relevant information necessary to the processing of grievances despite the arbitration award,' since only the Board can properly remedy statutory violations; that the Respondent's position conflicted with Respondent's assurance in negotiations that the 1971 amendments to the contract would not waive the Unions' statutory rights; and that the Board should note the evidence in the arbitrator's decision estab- lishing that the Respondent tried to prevent the griev- ance procedure from working and his statement that the Respondent's position was inconsistent with its apparent assurance to the Unions in negotiations. The General Counsel takes no position with regard to the relief requested by Respondent, but notes that Respondent's "demonstrated hostility towards union- ism" and a "pattern of discrimination against union stewards" and a "general pattern of anti-union hostili- ty and discriminatory conduct" are designed to frus- trate the Unions' lawful role as bargaining representative. We agree with Respondent. As we noted in United Aircraft Corporation, supra, if there is effective dispute-solving machinery avail- able, and if the combination of past and presently alleged misconduct does not appear to be of such character as to render the use of that machinery un- promising or futile, then we ought not to depart from our usual deferral policies. Turning to the instant case, we note specifically that the disputes between the parties raised by the allegations of paragraphs 8(a) and (b) of the com- plaint were submitted to and resolved by arbitration, in which it was found that (1) "[t]here was no violation of the agreement in the failure of {Respondent's fore- man] to summon a shop steward pursuant to the re- quest of employee James R. Rizner on June 7, 1972," and (2) "[t]he Company violated the agreement by refusing to produce, in the second step of the griev- ance procedure relating to the grievance filed on be- half of Kenneth R. Roberge, the notebooks maintained by [Respondent's foreman]." We note that Respondent has taken affirmative ac- 2 Without conceding that the award is dispositive , the Unions choose not to press paragraph 8(a) of the complaint. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion to comply with the arbitrator's award and has submitted an affidavit expressing its willingness to reconvene the second step grievance hearing and pro- duce the notebooks maintained by the Respondent, thereby demonstrating not only that the Respondent is willing "to honor its contractual commitments deal- ing with procedures for dispute resolution," but also that "the parties' agreed-upon grievance and arbitra- tion machinery can reasonably be relied on to func- tion properly and to resolve the current disputes fairly." United Aircraft Corporation, supra. The allegations set forth in paragraph 9(a), (b), and paragraphs 10 and 11 of the complaint involve a con- flict between a single employee and his immediate supervisors, which occurred on or about July 1, 1971; the allegations of paragraph 9(c) involve the content of disputed conversations, between a single employee and his immediate supervisors occurring on or about April 14, 1971. As noted above, no grievances have ever been filed over these disputes' Thus, the allega- tions of paragraphs 9, 10, and 11 are essentially limit- ed to isolated acts involving two employees, each of whom work at a separate plant. We note that the parties involved in United Aircraft Corporation, supra, and those involved herein are the same, and that the nature of the allegations contained in the instant com- plaint are also the same. Therefore, the only issue before us is whether allegations of the instant com- plaint are subject to voluntary adjustment through the parties' grievance and arbitration provisions. We think that they are. All of the alleged acts of harass- ment and discrimination contained in paragraphs 9, 10, and 11 of the complaint, it seems to us, could also be resolved by the parties' grievance procedures, since there appears to be no question but that they are covered by the provisions of the contracts providing for arbitration on the request of either party if the dispute is not settled under the grievance procedures (the contracts with Lodges 700, 743, and 1746 have identical grievance and arbitration provisions) .4 We find that the Arbitrator's Opinion and Award satisfies the standards set forth in Spielberg Manufac- turing Company, supra, and effectively disposes of the allegations of paragraph 8 of the complaint. Further- more, we see no apparent reason why the remaining allegations contained in paragraphs 9, 10, and 11 thereof ought not to be resolved through the parties' agreed-upon grievance and arbitration procedures. In a recent Supreme Court decision, the Court, cit- ing Collyer Insulated Wire, supra, noted that "Board 3 By letter dated July 13, 1973, the Respondent invited the Unions to meet with it to resolve the dispute involving the allegations of paragraphs 9, 10, and 11, either through the existing grievance procedure or through a special dispute-solving mechanism to which the parties might mutually agree. See United Aircraft Corporation, supra, fn. S. policy is to refrain from exercising jurisdiction in re- spect of disputed conduct arguably both an unfair labor practice and a contract violation when . . . the parties have voluntarily established by contract a binding settlement procedure." See William E. Arnold Co. v. Carpenters District Council of Jacksonville and Vicinity, et al. 417 U.S. 12 (1974). Therefore, having found that the parties' contractu- al grievance-arbitration process can, and does, func- tion effectively and fairly and has continued to be utilized by the parties to their satisfaction, "[w]e be- lieve it to be consistent with the fundamental objec- tives of Federal law to require the parties . . . to honor their contractual obligations rather than, by casting [their] dispute in statutory terms, to ignore their agreed-upon procedures." William E. Arnold Co. v. Carpenters, supra, citing Collyer Insulated Wire, su- pra. THE REMED': Without prejudice to any party and without decid- ing the merits of the controversy, we shall grant Respondent's Motion for Summary Judgment and dismiss the complaint herein. We shall, however, re- tain jurisdiction for a limited purpose. In view of the fact that the parties have not resolved the allegations contained in paragraphs 9, 10, and 11 of the com- plaint, we cannot now inquire whether resolution of the dispute will satisfy the standards set forth in Spiel- berg Manufacturing Company, supra. In order to elimi- nate the risk of prejudice to any party, we shall retain jurisdiction over this dispute solely for the purpose of entertaining an appropriate and timely motion for further consideration on a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of the Decision here, either been resolved by amicable settlement in the grievance pro- cedure or submitted 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.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board grants Respondent's Motion for Summa- ry Judgment and hereby orders that the complaint herein be, and it hereby is, dismissed, provided, how- ever, that: Jurisdiction of this proceeding is hereby retained for the limited purposes indicated in that portion of our Decision and Order entitled "The Remedy." 5 Collyer Insulated Wire, supra. UNITED AIRCRAFT CORPORATION 153 MEMBERS FANNING AND JENKINS , dissenting: This Board has found repeated instances where Re- spondent has committed violations of the Act which demonstrate its desire to frustrate employee rights .6 It is also clear that, since a difficult strike in 1960, Re- spondent has demonstrated an enmity toward union- ism marked by a lack of a stable relationship with the unions .' Despite this record of prior unlawful conduct occurring in an atmosphere of antiunion hostility, the majority has, over our dissent in United Aircraft Cor- poration, 204 NLRB 879 (1973), and again here, through the application of its Collyer doctrine, refused to decide issues concerning statutory rights and reme- dies under Section 8(a)(1), (3), and (5) of the Act, and, instead, required the parties to consider and de- termine through the contractual forum public rights which exist by virtue of the Act, independent of any contractual obligations. We have set forth elsewhere the reasons for our disagreement with the Collyer policy of deferral and see no need to restate them here. Accordingly, we will content ourselves with the observation that the major- ity, once again, has rendered meaningless much of the justification used to support its Collyer policy, in par- ticular its language to the effect that referral is inap- propriate where there is a pattern of union animus and the lack of a stable relationship between the par- ties.' 6 United Aircraft Corporation , 139 NLRB 39 (1962 ), enfd. 324 F.2d 128 (C.A. 2, 1963): United Aircraft Corporation, 144 NLRB 492 ( 1963), enfd. 333 F.2d 819 (C.A. 2, 1964); United Aircraft Corporation , 181 NLRB 892 (1970), enfd. 434 F.2d 1198 (C.A. 2, 1970); United Aircraft Corporation, 179 NLRB 935 (1969), enfd . 440 F.2d 85 (C.A. 2, 1971); United Aircraft Corporation, 180 NLRB 278 (1969), enfd. 440 F.2d 85 (C.A. 2, 1971); United Aircraft Corpora- tion, 188 NLRB 633 (1971); and United Aircraft Corporation , 192 NLRB 382 (1971). r In United Aircraft Corporation, 179 NLRB 935, 937, the Board found Respondent's conduct "demonstrated hostility towards unionism and pro- clivity towards violating the Act ." On enforcement in 179 NLRB 935 and United Aircraft Corporation, 180 NLRB 278, the court found that the many unfair labor practices "follow a general pattern of anti-union hostility and discriminatory conduct" United Aircraft Corporation v. N.L.R. B., 440 F.2d 85, 100. 8 In Collyer Insulated Wire, A Gulf & Western Systems Co., 192 NLRB 837, 842 (1971): . this dispute arises within the confines of a long and productive collective -bargaining relationship . The parties before us have, for 35 years , mutually and voluntarily resolved the conflicts which inhere in collective bargaining.... [No] claim is made of enmity by Respondent to employees ' exercise of protected rights. In deferring to arbitration in National Radio Company , Inc., 198 NLRB No. 1 (1972), the majority distinguished that case "from those in which a history of [union] animus or pattern of action subversive of Section 7 rights has been Unlike our colleagues, we did not see at the time of our dissent in 204 NLRB No. 133 any positive evi- dence of the maturation of the collective- bargaining relationship between the parties. Neither do we see any evidence here of progress toward that end. The misconduct by Respondent, if it occurred as alleged, would be a continuation of the pattern of conduct which has marked the relationship between the parties for more than a decade. Thus, it is alleged, inter alia, that Respondent refused to provide information rele- vant to the grievance-arbitration process and that it engaged in harassment of union stewards. The failure to provide information relevant to the grievance-arbi- tration process strikes at the very heart of the process itself and inhibits full and fair use of the process. Unlike our colleagues, we are not persuaded that Respondent's belated offer to provide the information which gave rise to one of the allegations-to comply with the arbitrator's award which found that Respon- dent violated the collective-bargaining agreement- demonstrates that Respondent is willing to honor its contractual commitments or that the voluntary pro- cess is working. Rather, we see Respondent' s refusal to provide the information so that the arbitrator could have made a finding on the merits in the first instance as further evidence of the unsatisfactory nature of the relationship which continues to exist between the par- ties. Neither, we submit, can anything positive be said for Respondent's continued harassment of union stewards.' In sum, it appears that this type of miscon- duct, similar to that in 204 NLRB 879 and the earlier cases, continues to permeate the relationship between the parties. For the reasons set forth in our dissents in United Aircraft Corporation, 204 NLRB 879, and in Collyer and its progeny, and here, we would determine this proceeding in accordance with the statutory mandate requiring the Board to resolve unfair labor practices submitted to it.10 alleged." The case cited for comparison by the majority in National Radio was United Aircraft Corporation, 188 NLRB 633. 9In United Aircraft Corporation, 188 NLRB 633, the Board found "the record shows that a pattern of discrimination against union stewards has been perpetrated by the Respondent in prior cases." Also see 180 NLRB 278, and 179 NLRB 935. 10 We further would note that, for the reasons stated in our dissent in Southwestern Bell Telephone Company, 212 NLRB No. 53 (1974), we regard the reasoning of the Supreme Court in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), as more analogous and persuasive than William E. Arnold Co. v. Carpenters, 417 U.S. 12 (1974), on which our colleagues rely to support their Collyer view. See also the more complete exposition of this point in our dissent in Electronic Reproduction Service Corporation, et al., 213 NLRB No. 110 (1974).