J & H Rainwear, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 497 (N.L.R.B. 1984)

J. & H RAINWEAR 497
J & H Rainwear, Inc. and Amalgamated Ladies'
Garment Cutters Union, Local 10, International
Ladies' Garment Workers' Union. Case 2-CA-
17327
14 December 1984
DECISION AND ORDER
BY CHAIRMAN'DOTSON AND MEMBERS
ZIMMERMAN, HUNTER, AND DENNIS
On 25 June 1981 .Administrative Law Judge
Edwin H. Bennett issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief and the Respondent filed a brief op-
posing exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
We agree with the judge for the reasons fully set
out in the attached decision that deferral to the ar-
bitration award is appropriate pursuant to the
standards of Spielberg.' The Respondent's failure
immediately to comply with the award is insuffi-
cient reason to decline to defer. Ma/rite of Wiscon-
sin, Inc., 198 NLRB 241 (1972), enfd. in relevant
part 494 F.2d 1136 (D.C. Cir. 1974).
The Respondent refused to allow union business
agent Jack Goldberg access to its plant as required
by the bargaining agreement. 2 The Respondent did
not otherwise refuse to deal with Goldberg, and
the Respondent did not refuse access to any other
agent of the Union. The Respondent's refusal of
access to Goldberg was grieved and arbitrated.
The arbitrator upheld the grievance, concluding,
"The Union, as well as the Employer, has the con-
tractual and, indeed, the statutory right, to desig-
nate its representatives for collective bargaining
purposes." The arbitrator directed the Respondent
to admit the Union's authorized representatives to
its factory at all reasonable times. A week later
Goldberg went to the plant to test the award and
was not allowed to enter.
Contrary to the General Counsel's argument, the
Respondent's failure to comply with the award is
not grounds for the Board to decline to defer. In
Ma/rite, above at 241-242, the Board stated:
If the Board's deference to arbitration is to be
,meaningful it must encompass the entire arbi-
tration process, including the enforcement of
arbitral awards [through judicial procedures].
- I Spielberg Mfg Go, 112 NLRB 1080 (1955)
2 The agreement states, "It is agreed that a representative of the Union
shall have access to the shop of [the Respondent] at all reasonable times
for the purpose of taking complaints and for the purpose of ascertaining
whether the provisions of this agreement are being lived up to"
In Electrical Workers IBEW LoCal - 715 (Maliiie) v.
NLRB, above, 494 F.2d . at 1139, the court agreed:
In this case, the arbitration process has foun-
dered, but it has not proven inadequate. The
union may yet obtain compliance with the
award by means of a suit for its enforcement.
As long as the remedy. of judicial enforcement
is available, the force of the Spielberg doctrine
is not diminished by one party's disregard for
the arbitral award:
We reaffirm the Ma/rite principle because it ac-
cords with the Board's deferral policy as estab-
lished in Spielberg and as recently confirmed in
Olin Corp., 268 NLRB 573 (1984). 3 Therefore, we'
shall defer to the arbitrator's award and dismiss the
complaint.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
a Member 'Zimmerman adheres to the views set forth in his dissent in
Olin, but agrees that in the circumstances of this case deferral is appropn-
ate under Spielberg
DECISION
STATEMENT OF THE CASE
EDWIN H. BENNETT, Administrative Law Judge. The
hearing in the above-captioned matter was conducted on
March 23, 1981, in New York, New York. The charge
was filed on June 19, 1980, by Amalgamated Ladies'
Garment Cutters Union Local 10, International Ladies'
Garment Workers' Union (the Union) and the complaint
thereon issued July 31, 1980, alleging, inter alia, that J &
H Rainwear, Inc. (the Respondent), in violation of both
Section 8(a)(5) and (1) of the Act and the applicable col-
lective-bargaining agreement, refused to permit Union
Business Agent Jack Goldberg access to the plant for
purposes of policing the bargaining agreement. The Re-
spondent admits almost all of the operative facts but
denies that it committed any violations of law.
On the entire record, including my observation of the
demeanor of the witness (only Jack Goldberg testified),
and after due consideration of oral argument and briefs
filed by the parties, I make the following
FINDINGS OF FACT
I JURISDICTION
The Respondent, a New York corporation, maintains
an office and plant in the city of New York where it is
engaged in the manufacture and nonretail sale and distri-
bution of rainwear and related products. Annually, the
Respondent sells and ships such products valued in
excess of $50,000 directly to customers outside the State
273 NLRB No. 78
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of New York The Respondent admits, and I find, that it
is an employer engaged in commerce within the meaning
of , Section 2(2), (6), and (7) of the Act, and that the
Union is a labor organization within the 'meaning of Sec-
tion 2(5) of the Act.
II , THE ALLEGED UNFAIR LABOR PRACTICES
At least since 1968 the Union has been recognized by
the Respondent as the exclusive collective-bargaining
representative for a unit composed of all cutters,.mark-
ers, and graders, three in number at the time of the
events here in issue. The parties also have had successive
collective-bargaining contracts since that year, the most
recent one of which is effective by its terms for the
period June 1, 1979, to May 31, 1982. That agreement
provides, inter aim, "it is agreed that a representative of
the Union shall have access to the shop of [the employ-
er] at all reasonable times for the purpose of taking com-
plaints and for the purpose of ascertaining whether the
provisions of this agreement are being lived up to."
In July 1978, Jack Goldberg became a union business
agent, and pursuant to the contractual provision he made
periodic and routine visits to the plant from that date
until about November 1979 In the latter part of that
month, Goldberg visited the plant as before. While there
he noticed Henry Frankel, a principal officer of the Re-
spondent and a brother of Jack Frankel, president, per-
forming work at the cutting" table. Goldberg told the
Frankels this work had to be done by a union member
and rejected the explanation that the regular cutter was
on vacation. Goldberg advised the Frankels they should
have requested a replacement from the union At this
point Henry Frankel 'angrily ordered Goldberg out of
the plant.
On January 8, 1980, Goldberg was present at an arbi-
tration hearing involving the Respondent, at the conclu-
sion of which Jack Frankel again told Goldberg never to
enter his shop or "I will spit in your face.". Frankel said
further he would "put a lock on the door before you can
come into my shop." On March 13, 1980,, Goldberg
again made a routine visit to the Respondent's premises
where upon entry he met Jack Frankél. Goldberg told
Frankel he was there to see the cutters to which Frankel
replied that "anybody else can come here but you." On
March 14, 1980,,the Union filed a grievance alleging 'that
the Respondent had violated the terms of the collective-
bargaining agreement set forth above by refusing to
permit Goldberg access to the plant. On June 9, 1980, a
hearing on that grievance was conducted before the im-
partial chairman who rendered an award on June 10,
1980. In that award the arbitrator noted the Union's
complaint and the Respondent's position that Goldberg
was denied access because of an alleged "personality
conflict," 2 but that any other business agent would be
permitted to enter the shop "for the purpose specified in
the agreement" The impartial chairman stated: "[T]he
Union, as well as the Employer, has the contractual , and,
These events are based on Goldberg's underned and credible testimo-
ny
2 The reasons for such conflict do not appear in the arbitrator's deci-
sion or this record
indeed, the statutory right, to designate its representa-
tives for collective bargaining purposes. Each party is re-
quired to deal with the representative of the other party
in good faith." Therefore, he rejected the Respondent's
suggestion that a. pragmatic solution be reached by the
Union assigning some other agent for entering the shop.
The impartial chairman rendered an award on June 10,
1980, directing the Respondent "to admit to its ,factory at
all reasonable times any duly authorized representative of
the Union for the purpose of taking up complaints and
for the purpose of ascertaining whether the terms of the
collective bargaining agreement are being lived up to."
On June 17, , 1980, Goldberg visited the plant to test the
award and was denied entry: The instant charge was
filed on June 19, 1980. The Union has not sought to en-
force the arbitration award in court, although its only ex-
planation for such refusal is its belief that an unfair labor
practice has been committed requiring a Board Order.
Both the Union and the General Counsel concede that
the arbitrator considered the statutory issue, and that his
award affords complete relief to the Union, and that the
only additional substantive remedy forthcoming from the
Board would be the posting of a notice.
There is no evidence that the Respondent has refused
to recognize Goldberg's representative status in any way
other than the refusal to allow him to enter the plant.
Nor is there evidence that the Respondent has refused to
meet and bargain with Goldberg outside of its premises
and apparently did so on January 8, 1980, the occasion
when Jack Frankel warned Goldberg not to enter the
plant, a's noted' above. It also appears the real purpose for
Goldberg's - visits to this, or any other employer, is to de-
termine contract compliance by speaking to employees.
Thus, Goldberg testified that he looks at' the "working
cards" issued to employees by the Union on which is re-
corded the proper wage and checks with the employees
to make certain such wage is being received He also
asks employees if they have grievances or knowledge of
"violations in the shop" Although it could be assumed
that Goldberg might, during these visits, resolve any
grievances or violations by discussion with the employer,
as app'arently he attempted to do in November 1979
when he disco'vered Henry Frankel working as a cutter,
this record does not clearly establish that his visitation
rights accorded by the contract are for that purpose.
Further, the Union at no time has sought to test the
Respondent's position that anyone else but Goldberg
could enter the premises to police the contract. It is con-
ceded that despite the refusal to permit Goldberg access
to the plant the Union has had no difficulty in meeting
with unit employees and, to the extent necessary, the Re-
spondent has continued to meet with the Union to dis-
cuss and resolve contractual and other matters concern-
ing terms and conditions of employment Finally, there is
absolutely no record evidence to support the allegation
made in paragraph 12(b) of the complaint that the Re-
spondent denied the Union (as distinguished from Gold-
berg) access to the plant on March 13, 1980 (or on any
other date for that matter), "unless and until Jack Gold-
berg ceased to act as the Union's designated agent for
the purpose of the adjustment. of grievances.". To the
J & H RAINWEAR

499
contrary, as recited above, the evidence, which inciden-
tally was adduced by the General Counsel through its
witness Goldberg, undeniably establishes that on that
date, and at all times; access was denied only to Gold-
berg and the Union was invited to send any other agent
into the plant.
III. DISCUSSION AND CONCLUSIONS
The Respondent does not seriously dispute that,
contravention of the collective-bargaining -agreement,
Goldberg has been denied access to its plant. In its
answer the Respondent concedes such refusal but asserts
that the complaint should be dismissed on two grounds.
First, the Respondent assets that such contract yiola-
tion is unrelated to grievance processing or other pro-
tected activity and therefore is not a statutory violation.
This position is untenable for the clause on its face as-
serts that "a representative of the Union shall have
access to the shop . . . for the purpose of ascertaining
whether the provisions of this agreement are being lived
up to." Plainly, this method of assuring contract ' compli-
ance is closely related to every term and condition of
employment bargained for and is an integral part of the
grievance machinery even though the visit is not for the
purpose of processing grievances directly with the Re-
spondent. Therefore, the clause constitutes a mandatory
subject of bargaining no less than any other term and
condition of employment set forth in the agreement.
Granite City Steel Co., 167 NLRB 310 (1967).3
The desirability of such procedure is not in issue. The
point is that it was frozen as a term and condition of em-
ployment for the duration - of the contract. By giVing a
restrictive reading to the contract provision so as to ex-
clude Goldberg as a union representative, the Respond-
ent unilaterally modified a contractually established term
and condition of employment and thus 'violated its bar-
gaining obligation under the Act. See Section 8(d) of the
Act; Granite City Steel Co., supra. Airport Limousine Serv-
ice, 231 NLRB 922 (1977).
Second, the Respondent urges deferral to the arbitra-
tion award on the ground that it adequately remedies
any violation and that its noncompliance is not a basis
for refusing to defer. In support of this position, the Re-
spondent relies on Malrite of Wisconsin, 198 NLRB 241
(1972), enfd 494 F.2d 1136 (D.C. Cir. 1974). I find merit
to this argument.
The General Counsel and the Union take the position
that Ma/rite is not applicable on the grounds that the vio-
lation alleged here involves both a contract right and a
statutory right, thus rendering deferral inappropriate.
This argument is erroneous for several reasons.
3 The Respondent cites no contrary authority but states that Gold.
berg's visits were not to process grievances While I have found that the
record is ambiguous with respect to whether or not grievance processing
is a function encompassed within the purview of the contract provision,
the finding of a statutory violation is not dependent on a resolution of
that question Where there has been a unilateral modification of a con-
tract provision relating to a mandatory (as opposed to a permissive) sub-
ject of bargaining, such as is the case here, an unfair labor practice will
be said to have occurred See Allied Chemicals Local 10 v Pittsburgh
Glass Co , 404 U S 157, 188 (1971)
It is well settled that there is no absolute right of entry
onto an employer's property by nonemployees. Rather,
to .bring such action within the Act's protection requires
a showing of need that neither was alleged, nor litigated,
nor argued here. NLRB v. Babcock -& Wilcox Co., 351
U.S. 105 (1956). Indeed, the Union concedes, and the
General Counsel does not seriously dispute, that but for
the contract clause, the Union would not be entitled to
insist on access to the plant for purposes of policing the
collective-bargaining agreement. Moreover, the evidence
demonstrates that the Union was fully capable' of polic-
ing the agreement subsequent to Goldberg's exclusion
from the plant. Accordingly,' the Union's right under the
Act to haye access to the plant, under the circumstances
of this case, is dependent solely on the collective-bar-
gaining agreement. -
But, argues the -General Counsel, since the contract
right here involved is a step in the grievance procedure,
Goldberg's exclusion from the plant is akin to a "refusal
to bargain with Goldberg" (G.C. Br. 7), nd consequent-
ly interferes with employees' _statutory rights to select
their own bargaining representative. He' further postu-
lates that, when viewed in this light, the Malrite principal
is inapplicable under the Board's holding in Native Tex-
tiles, 246 NLRB 228 , (1918)., In that case, the employer
flatly refused to meet with a particular representative for
the adjudication of grievances", Onror off its premises.
The union's grievance covered both the reftisal to meet
with that person and the refusal to allow that individual
access to its premises. As to the latter refusal, the em-
ployer relied in part on certain provisions in the collec-
tive-bargaining agreement. The administrative law judge
recommended deferral pursuant to Collyer Insulated
Wire, 192 NLRB 837 (1971), and Roy Robinson Chevrolet,
228 NLRB 828 (1977). The Board 'rejected this recom-
mendation holding that. the right , of employees to desig-
nate a representative of their own choosing for the proc-
essing of grievances does .not turn on contract interpreta-
tion but is a fundamental statutory right.
The -Respondent correctly points out that the Native
Textiles decision is distinguishable. Initially, as discussed
above, I am unable to find that Goldberg's visits to the
plant were to meet or deal with the Respondent for the
processing of grievances, rather, than, routinely to deter-
mine from employees if grievances existed. Even assum-
ing , arguendo that such grievance processing was one of
Goldberg's functions in visiting the plant, the instant case
still is factually inapposite. There is no dispute that here
the Respondent only refused to. meet Goldberg in its
plant, unlike the total refusal present in Native Textiles.
The consequence of that limited refusal merely was to
deny the Union a right gained in bargaining, i.e., plant
access, and not the abrogation of a separate basic statuto-
ry right. To the extent that such conduct also constitutes
a unilateral modification of the contract, and therefore
would violate Section 8(a)(5), the Malrite principle is di-
rectly in point and controls the disposition of this case.
That is so because the General Counsel's position is re-
duced to a claim that, if there is a statutory violation as
well as a breach of contract, the Board should not defer
to an arbitration award, even one that remedies the
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
breach, where . the employer refuses to abide by that
award:
That position, however, was 'considered, and rejected
in Malrite. In _that. case the arbitrator upheld the union's
claim that the employer breached the collective-bargain-
ing agreement by changing, the work assignments of the
bargaining unit employees (radio engineers), requiring
them to work as combination engineer-announcers.. The
employer refused _to comply with the award. The Board
majority dismissed the complaint (the administrative law
judge had found a violation of Sec. 8(a)(5) and Sec. 8(d)
of the Act premised on a unilateral modification of the
bargaining agreement), holding, in relevant part that: "It
appears that the- desirable objective of encouraging the
voluntary settlement of labor disputes through the arbi-
tration process will best be served by requiring that par-
ties_ to a dispute, after electing to resort to arbitration,
proceed to the usual conclusion of that process—judicial
enforcement—rather than permitting them to invoke the
intervention 'Of- the Board" Ma/rite of Wisconsin, 198
NLRB, 241, 242 (1972). The Board further advised par-
'ties that judicial enfordement was preferable to Board
action stating': "Surely immediate access to the court is
to be preferred - over this long administrative route, and
this is the course we are here encouraging these and
future disputants to follow," Id. at 242.
Here, as in 'Ma/rite, 'the condition of employment
changed by the employer was one provided for by the
collective-bargaining agreement, i.e., job, duties in Mal-
l:10, and plant access to a nonemployee to police the Col-
lective-bargaining agreement (whether by investigation
with employees, or processing grievances in direct deal-
ing with the em'ployer). Thus,_ the statutory violation
both cases is the unilateral midterm contract violatiOn.
The union in Ma/rite, in seeking to have the court set
aside the Board's 'Order, argued that the statutory issue
could be resolved only by the Board The court, in af-
firming the Board's deferral policy stated: "The Board-has made it Clear that,' when deferral is appropriate, the
arbitration award beComes the sole' remedy for both con-
tractual 'and statutory violations!: Electrical Workers
IBEW Local 715 , v. NLRB,' 494 F. -2d 1136, 1138 . (D.C.
Cir. 1974). - -
A readirig . of the arbitration award indicates that the
arbitration Proceeding here was fair and regular, the ar-
biirator considered the itatutory issue, and in all respects
that award complies with 'the criteria for deferral under
Spielberg Mfg. Go, 142' NLRB 1080 (1955). Therefore,
deferral' ordinarily would he appropriate and neither 'the
GenerarCounsel nor the Union even suggest otherwise.„
-Rather, as noted, they rely nn authorities, which I have
found factually inapposite, where the policy of deferral
was held not applicable. 4 Bearing in mind that the Union
has offered no reasonable 'explanation -for its failure to
enforce the arbitrator's -award, which it candidly con-
cedes affords it full relief, inasmuch as I do not find
ment to the General Counsel's various arguements, and
because I believe ' this case is controlled by the Board's
Ma/rite principal, I recommend dismissal of the com-
plaint in its entirety.5
CONCLUSIONS OF LAW
'1. J & H Rainwear, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Amalgamated Ladies' Garment Cutters Union,
Local 10, International Ladies' Garment Workers'
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act
3. The Respondent has not violated ' the Act in any re-
spect alleged in the complaint. ,
On these findings of fact and conclusions of law and
on the entire recOrd, I issue the following recommend-,. , -
ed 6
ORDER
The complaint is dismissed in its entirety. .
. 4 In addition to-the Native Textiles case, the General Counsel also relies
on Electronic Reproduction Service Corp „ 213 NLRB 758 (1974) There
Ma/rite was considered inapplicable_ because the employer had repudiated
the entire collective-bargaining process by refusing to execute an agreed-
on contract Similarly, in AMF Inc , 219 NLRB 903 (1975), the Collyer
doctrine was found indefensible to a series of violations resulting in "a
complete breakdown in contract renewal negotiations, rather than a rou-
tine contract violation arising in the course of a bargaining relationship
stabilized by an existing collective-bargaining agreement of fixed dura-
tion" Id at 912 Clearly, these cases cannot reasonably be likened to the
single contract violation involved in the instant matter
5 As noted above, the allegation that the Respondent _refused access tc
its plant by any union representative unless Goldberg ceased acting as a
union agency for the adjustment of grievances was not supported by any
evidence at all, was not mentioned in the hearing, and was not argued ir
the brief Indeed, it is contrary to the General Counsel's and the Union's
candid and clear expression of the gravamen of the complaint I therefore
Consider that allegation as having been abandoned
6 If no exceptions are filed as piovided by Sec 102 46 of the Board',
Rules and Regulations, the findings, conclusions, and recommendec
Order shall, as provided in Sec 102 48 of the Rules, be adopted by tilt
Board and all objections to them shall be deemed waived for all pur
poses