Houston Mailers Union No. 36

National Labor Relations Board - Board Decisions

Oct 18, 1972

199 N.L.R.B. 804 (N.L.R.B. 1972)

804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Houston Mailers Union No. 36 affiliated with Inter-
national Mailers Union and Houston Chronicle Pub-
lishing Company . Case 23-CB-1225
October 18, 1972,
DECISION AND ORDER
On February 8, 1972, Trial Examiner Marion C.
Ladwig issued the attached Decision in this proceed-
ing. Thereafter, counsel for General Counsel filed ex-
ceptions and a supporting brief, and counsel for
Respondent filed a brief in support of the Trial
Examiner's Decision.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to affirm the Trial
Examiner's rulings, findings, and conclusions and to
adopt his recommended Order.
The complaint alleges and the General Counsel
contends that Respondent violated Section 8(b)(1)(B)
of the National Labor Relations Act, as amended, in
that Respondent restrained and coerced the Charging
Party in the selection of its representative for the pur-
pose of collective bargaining or the adjustment of
grievances by fining the Charging Party's foreman,
Joe V. Frenza, who was also a member of Respon-
dent, a sum of $25 for performing an act within the
scope of his supervisory authority. Respondent denies
it has violated the Act in any manner but contends
further that the Board should defer decision in this
case in light of the fact that the question presented in
this case is specifically covered in the parties' collec-
tive-bargaining agreement, which also contains a de-
tailed grievance and arbitration procedure which
should be utilized to determine the dispute involved
here. The Trial Examiner on the strength of the griev-
ance and arbitration provisions in the parties' con-
tract, and on the authority of the Board majority
decision in Collyer Insulated Wire, A Gulf and Western
Systems Co.,' deferred this case to the parties' contrac-
tual grievance and arbitration provisions while retain-
ing limited jurisdiction in the manner and for the
purposes set out in our Collyer decision.
We are in agreement with the Trial Examiner's
disposition of this case, but wish to set forth our rea-
soning in somewhat different terms.
Section 8(b)(1)(B), here involved, protects an em-
ployer against union-caused restraint or coercion "in
the selection of his representative for the purpose of
collective bargaining or the adjustment of griev-
ances." The concern of the Congress, in enacting this
provision, was that one party to the bargaining proc-
cess should not be coerced in his selection of those
' 192 NLRB No. 150.
who will carry out his function in the bargaining and
grievance-handling process. But we know of no stat-
utory prohibition against an employer's voluntary
agreeing to limit or circumscribe either the selection
of representatives or the manner of the exercise of a
representative's functions. Or, to rephrase the issue,
we see nothing in the statutory scheme that prohibits
an employer and a labor organization from voluntar-
ily resolving, in their collective-bargaining agreement,
how this broadly stated legislative policy should func-
tion in their particular circumstances.
Thus, in the present case, sections 17 through 19
of the parties' contract state that all work is under the
foreman's direction. Other substantive provisions
may be applicable as well. Thereafter, section 20 con-
tains the following specific provision concerning pos-
sible disciplining of the Employer's foremen by the
Union:
The Union or its representatives shall not dis-
cipline the foreman for carrying out the instruc-
tions of the Publishers or his representatives as au-
thorized by this contract and scale. Employees
may protest against foreman's actions, but if
foreman, after careful consideration, decides his
actions [sic] in accordance with the contract, he
need not change conditions unless directed to do
so by the Publishers or by a decision of the Joint
Standing Committee. If any employee or the Un-
ion has a complaint against the foreman ... and
differences cannot be adjusted by conciliation,
the matter may be referred to the local Joint
Standing Committee as provided herein. Nothing
contained in this Section 20 or any other section
in this contract shall be construed as requiring
that the foreman shall be a member of the Union.
[Emphasis supplied.]
It is in the context of such an agreement between the
parties that the instant dispute arises. We note that the
parties' arbitration clause is broadly stated, covering
not only all disputes arising out of the operation or
interpretation of the contract, but any and all disputes
between the parties.
In the Collyer case, the Board pointed to the con-
gressionally expressed and court approved policy fa-
voring voluntary settlement of labor disputes through
the arbitral process. As the Board stated in Collyer,
supra, "When the parties have contractually commit-
ted themselves to mutually agreeable procedures for
resolving their disputes during the period of the con-
tract, we are of the view that those procedures should
be afforded full opportunity to function." We see no
reason why such a policy should not prevail in the
present case. Where, as here, the statutory provision
in question is generally phrased and, like Section
8(a)(5), for example, deals with the on-going relation-
ship between the parties to collective bargaining, we
199 NLRB No. 69
HOUSTON MAILERS UNION NO. 36
believe it well within the intent of the statute to en-
courage the parties to flesh out the bare-bones of their
statutory obligations with specific ground rules ap-
propriate to their particular circumstances. And
where, as here, they have done this, the precise limits
of their rights and obligations have become largely
contractual, and should, at least in the first instance,
be presented to an arbitrator for interpretation and
decision. As in Collyer, supra, we shall direct the par-
ties in the present case to the forum of arbitration,
retaining jurisdiction in the manner noted by the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner.
MEMBERS FANNING AND JENKINS , dissenting:
The majority by its deferral to arbitration herein
refuses to decide a case involving a question readily
solvable through the processes of the Board in order
to give the parties an opportunity to utilize a grievance
and arbitration procedure which one of the parties,
the Charging Party here, has no desire to use and
which the other party, Respondent here, refused to
use when it first had the opportunity to do so. We
respectfully dissent from the majority's adoption of
the Trial Examiner's Decision herein and its unwar-
ranted deferral and would decide this case on its mer-
its on the basis of the stipulated factual record
presently before the Board.
The majority, in effect, refers to the parties' con-
tractual provisions the simple issue of whether or not
Respondent violated Section 8(b)(1)(B) of the Act
when it fined Foreman Frenza for an act admittedly
within the scope of his authority to perform. This
general issue in various forms has been passed on by
the Board in numerous recent cases involving
8(b)(1)(B) allegations?
The majority could very easily decide this case
which is presently before us on a full record and which
has not been processed yet through the parties' griev-
ance and arbitration provisions. This the majority re-
fuses to do. Rather, it defers decision in this case even
where the statutory violation could be decided with-
out a ruling on the contract violation alleged and
where the expertise of an arbitrator is not needed.'
The majority has thereby further expanded the Col-
lyer rationale.
In Collyer, the majority took great pains to state
as a key reason for deferral the fact that "the contract
and its meaning in present circumstances lie at the
center of this dispute. In contrast, the Act and its
policies become involved only if it is determined that
805
the agreement between the parties, examined in the
light of its negotiating history and the practices of the
parties thereunder, did , not sanction Respondent's
right to make the disputed changes, subject to review
if sought by the Union, under the contractually pre-
scribed procedure."4 Today, in a case where such a
consideration is nowhere involved, the majority still
refuses to decide the statutory issue involved.
Indeed, by emphasizing their reliance on the fact
that section 20, the contract clause dealing with disci-
plining of foremen by the Union, is so broad as to
include the prohibitions of Section 8(b)(1)(B), the ma-
jority has now confirmed what we have previously
predicted would be the result of their Collyer princi-
ple; namely, by incorporating the provisions of the
Act into the contract and then appending an arbitra-
tion clause, the parties can avoid the sanctions of a
Board determination of the alleged violation of the
Act.
Accordingly, for the relevant reasons set out in
our dissents in Collyer, and for those reasons set out
herein, we dissent from the majority's decision and
from the further abdication of the Board's statutory
responsibility to which this decision leads.
We note also that the Trial Examiner stated that
deferral here could be accomplished without preju-
dicing any of the Section 7 rights of the employees
since the unfair labor practice charge here is not based
on an alleged violation of employee rights guaranteed
by the Act and hence the Board is not obliged to assert
its adjudicatory powers in order to vindicate employ-
ee rights under the Act. The Trial Examiner's com-
ment misses the point, however. The situation
involved here concerns an allegation of an 8(b)(1)(B)
violation. This statutory section protects and Employ-
er from restraint and coercion by a union. Material
here then is whether or not the Charging Party (the
employer herein) has had its rights under the Act prej-
udiced by this deferral. We submit that such is the
case.
2 See, e g, Sheet Metal Workers' International Association, Local No 71,
AFL-CIO (H J Otten Company, Inc), 193 NLRB No 5; San Francisco
Typographical Union No 21, 193 NLRB No 41, Bricklayers, Masons and
Plasterers ' International Union of America, AFL-CIO, Local No 7 (United
Masonry, Inc), 193 NLRB No 72
3 The Trial Examiner conceded this in his Decision
4 192 NLRB No . 150, Board decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: This case was
tried at Houston, Texas, on January 6, 1972. The charge was
filed by the Company on October 18, 1971 1 (amended No-
All dates are in 1971 unless otherwise stated.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vember 12), and the complaint was issued on November 16.
The case arose when a company foreman designated a jun-
ior employee as man in charge of a double-time shift, and
the Union fined the union-member foreman. The primary
issues are: (a) whether the Board will under its Collyer deci-
sion, defer to arbitration in this case, and if not, (b) whether
the levy of the union fine restrained or coerced the Compa-
ny in the selection of its representative for the adjustment
of grievances, in violation of Section 8(a)(1)(B) of the Act.
Upon the entire record and after due consideration of
the briefs filed by the General Counsel, the Union, and the
Company, I make the following:
FINDINGS OF FACT
I JURISDICTION
The Company, a Texas corporation, is engaged in the
publication of a daily newspaper in Houston, Texas, where
it subscribes to various interstate news services, advertises
various nationally sold products, and annually derives gross
revenues in excess of $200,000. As admitted by the Union,
I find that the Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act,
and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II ALLEGED UNFAIR LABOR PRACTICES
A. Levy of Fine Against Foremen
The facts are stipulated . On September 3, Mailroom
Foreman Joe Frenza designated employee Carl Imel as man
in charge to work a double-time shift on September 6. The
Union complained , to no avail , that senior employees want-
ed the designation . Thereafter the Union charged Foreman
Frenza , who was a union member , with violating the union
bylaws , article 6 , section 2 , which provides that "Foremen
shall not designate any particular day, nor how many days,
a member shall work in any one week ." Under instructions
from the Company , Frenza did not appear to defend him-
self before the union executive board . On September 16, the
Union levied a $25 fine against Frenza for designating Imel
as man in charge on the double -time shift . The Union noti-
fied him of the fine on October 7, and Frenza paid the fine
under protest on October 8.
Foreman Frenza acted within the scope of his supervi-
sory authority when making the designation . Frenza has
authority to, and does , adjust employee grievances on be-
half of the Company.
On September 20, after the fine was levied , the Compa-
ny complained in writing to the Union, stating that Frenza
was acting in his capacity as supervisor , and protesting that
"such charges and fine are in direct violation of the contract
between the parties and also violate the National Labor
Relations Act." (Emphasis supplied.) In response , the Un-
ion wrote the Company about October 7, expressing resent-
ment for the Company's intrusion into internal union
affairs, and stating that if the Company feels the Union
committed a violation of the current union agreement, "we
suggest you avail yourself of the Grievance and Arbitration
provisions as found in Section 2."
The Company has not filed a grievance. It filed the
charges herein instead.
B. Contractual Provisions
Section 2 of the union agreement (effective December
15, 1969, through January 15, 1973) provides for a grievance
procedure with final and binding arbitration. Section 2(b)
contains a broad arbitration clause, providing that "all dis-
putes ansing out of the operation of this agreement ... and
any and all disputes between the parties" shall be referred
to the grievance and arbitration procedure. (Emphasis sup-
plied.) There is no stated time limit for filing a grievance.
Section 7 of the agreement provides: " It is agreed that
fruitless controversies must be avoided and every effort
made to maintain harmonious relations. To accomplish this,
both parties will in every instance give prompt attention to
disputes and will in good faith endeavor to settle all differ-
ences by conciliation or arbitration ... " (Emphasis supplied.)
In addition, the agreement contains a specific provision
concerning the Union disciplining a foreman. Section 20
provides:
The Union or its representatives shall not discipline
the foreman for carrying out the instructions of the Pub-
lishers or his representatives as authorized by this con-
tract and scale. Employees may protest against
foreman's actions, but if foreman, after careful consid-
eration, decides his actions in accordance with the con-
tract, he need not change conditions unless directed to
do so by the Publishers or by a decision' of the Joint
Standing Committee. If any employee or the Union has
a complaint against the foreman ... and differences
cannot be adjusted by conciliation, the matter may be
referred to the local Joint Standing Committee as pro-
vided herein. Nothing contained in this Section 20 or
any other section in this contract shall be construed as
requiring that the foreman shall be a member of the
Union. (Emphasis supplied.)
Under Sections 17-19, all work is under the foreman's direc-
tion. Section 3(d) specifically states that the foreman's com-
pensation and working conditions are not covered by the
agreement.
C. Proposed Deferral to Arbitration
1. Contentions of the parties
In its able brief, in which it analyzes the Collyer deci-
sion, Collyer Insulated Wire, A Gulf and Western Systems
Co., 192 NLRB No. 150 (1971), the Union contends that
here, it and the Company "have in fact agreed to submit
disputes such as the present one to the grievance and arbi-
tration procedures of their collective-bargaining agree-
ment," and that "the complaint should be dismissed with
either party having access to the procedures of the Board in
the event that the results reached through their contract
procedures is repugnant to the Act in accordance with the
principles of Spielberg Manufacturing Company, 112 NLRB
1080." The Union emphasizes the contractual provisions
HOUSTON MAILERS UNION NO. 36
which require all disputes and differences to be processed
through the grievance and arbitration procedure, and also
the specific contractual prohibition against the Union "dis-
ciplining the foreman for actions authorized by the con-
tract." Quoting language from the Collyer decision, the
Union argues that the Company should not be permitted to
"sidestep" the agreement of the parties by going to a "forum
not contemplated by their own agreement."
The General Counsel and the Company oppose defer-
ral to arbitration. The General Counsel argues that the Col-
lyer decision is distinguishable because it "did not involve
an 8(b)(1)(B) situation ." The Company, ignoring the con-
trary position it took on September 20 (that the fine was in
direct violation of the union agreement), contends in its brief
that this case does not involve a contract dispute, and ar-
gues : "This distinguishes Collyer since Collyer involved a
unilateral wage change with contract interpretation at the
very core of the dispute."
2. Anaylsis and concluding findings
The Union disciplined a foreman member (by fining
him $25) for taking, on behalf of the Company, certain
action which the Union contends was not authorized by the
collective-bargaining agreement . At the time, the Company
notified the Union that the charges against the foreman and
the fine "are in direct violation" of the agreement.
The agreement (sec. 20) provides that "The Union
... shall not discipline the foreman for carrying out the
instructions of the Publishers . . . as authorized by this
contract . . . " The agreement (sec. 2) also provides that all
disputes arising from the operation of the agreement or re-
garding contract interpretation, and any and all disputes
between the parties, shall be referred to the grievance proce-
dure, culminating in final and binding arbitration. The
agreement (sec. 7) further provides that "both parties" will
in good faith endeavor to settle all differences by concilia-
tion or arbitration.
Therefore here, as in Collyer, "the breadth of the arbi-
tration provision makes clear that the parties intended to
make the grievance and arbitration machinery the exclusive
forum for resolving contract disputes." In addition, the
Company and the Union have agreed that all disputes be-
tween the parties, and all differences arising between them
during the term of the agreement, shall be settled in that
way. Furthermore, the Company and the Union have in-
cluded in the agreement a specific provision dealing with
union discipline of a foreman.
There is clearly a contractual dispute over whether or
not the Union violated the union-disciplining-of-foreman
provision in the collective-bargaining agreement by disci-
plining the foreman with the $25 fine. It is also clear that
the Company and the Union committed themselves to refer
to arbitration not only such contract disputes as this, but all
disputes and differences between them. The Union has sug-
gested arbitration, but the Company prefers that the Board
resolve this particular dispute.
The Collyer case , as does this case, involved both stat-
utory and contract violations. But there are significant dis-
tinguishing factors. In Collyer, the contract and its meaning
were "at the center" of the dispute, and "the Act and its
807
policies" became involved only if it were determined that
the agreement did not sanction the employer' s unilateral
changes (which were alleged to be 8(a)(5) violations). In
addition, it was found that "disputes such as these can
better be resolved by arbitrators with special skill and expe-
rience in deciding matters arising under established bar-
gaining relationships than by the application by this Board
of a particular provision of our statute." Here, the alleged
statutory violation (restraining the Company in the selec-
tion of its representative) could be resolved without a ruling
on this alleged contract violation, and the expertise of an
arbitrator is not needed.
But there remain other policy considerations in Collyer,
as well as the obvious preference for parties to settle their
own problems, and the disruptive effect on their contractu-
ally encouraged "harmonious relations" if the Board per-
mits one of the parties to sidestep the unequivocal
commitment to refer all disputes to the grievance procedure.
Here, in their agreement, the Company and the Union
clearly and unmistakably waived their right to resort to the
Board, the courts, to strike or lockout action, or any other
means outside the grievance procedure for settling "any and
all disputes" between them. The Board held in Collyer,
"When the parties have contractually committed them-
selves to mutually agreeable procedures for resolving their
disputes during the period of the contract, we are of the view
that those procedures should be afforded full opportunity to
function." Clearly this can be done in the present case with-
out diminishing or prejudicing any of the Section 7 rights of
the employees, inasmuch as the unfair labor practice charge
is not "based on an alleged violation of employee rights
guaranteed by the Act," and where the Board is not obligat-
ed to assert its adjudicatory power in order to "vindicate
employee rights under the Act." Gateway Transportation
Co., 193 NLRB No. 1, TXD, sec. III, 8. Neither the General
Counsel nor the Company has even suggested that deferral
to arbitration in this case could establish a precedent which
could strip any employee of a statutory right to appeal to
the Board if he feels aggrieved by the operation of the
agreement or the grievance procedure. Nor have they de-
nied that the agreement (in the words of Collyer) makes
"available a quick and fair means for the resolution of this
dispute including, if appropriate, a fully effective remedy
for any breach of contract which occurred."
I therefore find that under the particular circumstances
of this case, harmonious relations between the contractual
parties would best be served-without diminishing or preju-
dicing any employee's Section 7 rights-by honoring the
commitment by the Company and the Union to settle all
disputes through the grievance and arbitration procedure. I
therefore find that the complaint should be dismissed, with-
out prejudice to any party on the merits of the dispute.
CONCLUSIONS OF LAW
1. The Company and the Union have committed them-
selves to settle through the grievance and arbitration proce-
dure not only this but all disputes and differences arising
between them during the term of their collective-bargaining
agreement.
2. In the circumstances of this case and in the absence
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of any prejudice to Section 7 rights of any of the employees,
it would effectuate the policies of the Act to honor the
commitment and to defer the dispute between the Company
and the Union, concerning the union discipline of a fore-
man, to the grievance and arbitration procedure.
REMEDY
In order to eliminate the risk of prejudice to any party,
I find it necessary that the Board retain jurisdiction over this
dispute solely 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 the issuance of this Decision, either been
resolved by amicable settlement in the grievance procedure
or submitted promptly to arbitration, or (b) the grievance or
arbitration procedures have not been fair and regular or
have reached a results which is repugnant to the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety; provided,
however, that:
Jurisdiction of this proceeding is retained for the limit-
ed purpose indicated in the section of the Trial Examiner's
Decision entitled "Remedy."