National Steel Corp.

National Labor Relations Board - Board Decisions

Jun 24, 1974

211 N.L.R.B. 880 (N.L.R.B. 1974)

880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Granite City Steel Company, Subsidiary of National
Steel Corporation and International Chemical
Workers Union, Local No. 50, AFL-CIO. Cases
14-CA-7381 and 14-CA-7502
June 24, 1974
DECISION AND ORDER
On January 31, 1974, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding . Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs , and the Respondent filed cross-exceptions, an
answering brief, and a brief in support of its cross-
exceptions.
The Board has considered the record and the
attached 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is , dismissed in its entirety.
MEMBERS FANNING AND JENKINS , dissenting:
For the reasons we have expressed heretofore in
Collyerl and its progeny, we would determine the
merits of the issues raised here . Unilateral change of
longstanding conditions and practices of employ-
ment, some of 30 years' duration, which by any
standard of contract law control the meaning of
contract provisions , raises an issue under the statute
which the arbitrator is not competent to resolve.
I Collyer Insulated Wire, 192 NLRB 837.
DECISION
RAMEY DONOvAN, Administrative Law Judge: The
charges in this case were filed by the Union on April 26
and July 27, 1973. The complaint , issued by the General
Counsel of the Board through the Regional Director of the
Board on September 13, 1973 , alleged that the following
conduct of Respondent , Granite City Steel Corporation,
violated Section 8(a)(1) and (5) of the Act:
1. Since on or about April 15, 1973, Respondent
has unilaterally changed existing terms and conditions
of employment by discontinuing payments for overtime
for work performed by employees after a shift change
I The Union had also filed a motion to correct transcript , which, being
unopposed is granted . There are, I believe , some errors in the transcript
other than those covered by the aforesaid motion but since I do not regard
when the employees had not worked a full 8 hours on
the prior shift.
2. Since on or about April 29, 1973, Respondent
has unilaterally changed existing terms and conditions
of employment by discontinuing "call out" pay, to wit,
payment of a 14 hour guarantee to all employees called
out to work on a day on which they are otherwise
scheduled to work.
3. Since on or about April 29, 1973, Respondent
has unilaterally changed existing terms and conditions
of employment by withholding meal tickets from
employees when employees have been paid in excess of
straight time for the prior shift or where they have
worked less than 8 hours on the prior shift.
Respondent , in its answer, denies the commission of the
alleged unfair labor practices and avers the existence and
availability of a grievance-arbitration provision in the
contract between the Union and the Respondent Compa-
ny.
The case was tried at St. Louis, Missouri , on October 16,
1973. All parties were represented by counsel and
participated fully in the trial . At the conclusion of the case,
the parties waived oral argument and, subsequently, all
filed briefs that ably presented their respective conten-
tions.)
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is a Delaware corporation and, at all times
material , the following are the relevant and material facts
regarding its business insofar as the Board 's jurisdiction is
concerned.
Respondent had its principal office and place of business
in the city of Granite City, Illinois. Respondent is engaged
in the manufacture and nonretail sale and distribution of
steel and related products. The Granite City plant is the
only facility involved in , and referred to, in this proceed-
ing.
In a representative 12-month period, Respondent, in the
course of its operations, manufactured , sold, and distribut-
ed products valued in excess of $50 ,000, of which products
valued in excess of $50,000 were shipped from its plant
directly to points outside Illinois.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
For approximately 30 years, there have been contractual
relations between the Union , as the collective-bargaining
agent of the unit employees ,2 and the Employer at the
Granite City plant . By merger, National Steel acquired
Granite City Steel Company on August 14, 1971. A
contract, dated September 1, 1971, was entered into
them as material or as obstacles to understanding what was actually said at
various points , no further corrections are here undertaken.
2 Approximately 1,000 in number.
211 NLRB No. 135
GRANITE CITY STEEL COMPANY
between "Granite City Steel Company, subsidiary of
National Steel Corporation, Blast Furnace Department,
Granite City, Illinois," and the Union, for the term August
1, 1971, to October 1, 1974. The contract is a 97-page
printed booklet and among its provisions is article XVI
which provides a broad five-step grievance procedure.3 In
the event a grievance is not settled by step 4 of the
grievance procedure, the matter may be taken to step 5,
which is arbitration. The arbitrator or "impartial umpire,"
as he is referred to in the contract, is chosen by mutual
agreement of the parties. In the event that the parties are
unable to agree upon an arbitrator, it is provided that a list
of seven arbitrators will be secured from the Federal
Conciliation Service and the parties will select an arbitrator
therefrom. It is further provided that the arbitrator,
"insofar as shall be necessary to the determination of such
grievance" will "have authority to interpret and apply the
provisions of this Agreement. . . . Only questions as to the
interpretation or application of or compliance with the
provisions of this Agreement and such local working
conditions as may be in effect at the time of the grievance
may be submitted to an umpire. The decision of the umpire
shall be final and binding.. . .
Walter, vice president of industrial relations, assumed his
position on February 1, 1972, but apparently was not at the
plant physically on a full-time basis until March 1972.
McCreary, manager of industrial relations, assumed his
position on April 24, 1972, and came to work at Granite
City at that time.
National City makes periodic audits of its subsidiaries'
and divisions' practices and procedures and did so at
Granite City. Although the record does not show the
precise time of the audit report at Granite City, it
apparently was completed by early 1972. According to
McCreary, the audit indicated that there were certain pay
practices at the Granite City plant that were not in
accordance with the contract between the Company and
the Union. As the Company viewed this situation, the
particular pay practices, aforementioned, were not only not
in accordance with the contract but they were also
uneconomic, since the Company was paying more money
to employees in certain situations than the contract
required.
The 14-hour call-out
On February 11, 1972, grievance BF 16-72-2 was filed
regarding employee Martin of the ironworkers depart-
ment.4 The grievance involved the claim that the employee
was entitled to 14 hours call-out pay when the er* a)loyee
9 Article XVI Grievance Procedure
Should any differences arise between the Com-+any and the Union, or
its members employed by the Company, as to the interpretation or
application of, or compliance with the provisions of this Agreement
regarding working conditions or other matters, or should any dispute of
any kind arise, there shall be no interruptions or impeding of the work,
work stoppages, strikes or lockouts, on account of such differences, but
an earnest effort shall be made by the Company and the Union to settle
such differences orderly and promptly in accordance with the
procedure set forth in this Article
4 As we have seen , the contract describes the Employer, party to the
contract, as "National Steel Corporation, Blast Furnace Department,
Granite City, Illinois" While the parties in the record refer to the
Ironworkers and other departments, this and other "departments" are
881
was called out to work on a day other than his scheduled
day off. Grievance 46723, filed March 1972, involved an
employee in the raw materials department and also was
about the issue of the 14 hour call-out pay.5 Grievance
51724, filed April 13, 1972, pertained to employee Daley in
the storeroom department and involved the 14-hour call-
out pay. Employee Garner of the janitor department filed
grievance 79726 in June 1972. This grievance involved the
matter of 14-hour call-out pay. Two other grievances were
filed by janitor department employees in July 1972,
involving 14 hour call-out pay. One of these, 99727, was
filed by employee Hornbuckle and the other, 100727, was
filed by Garner, abovementioned. Both 99727 and 100727
involved the issue of 14-hour call-out pay.
Having gone through the various steps in the contract
grievance procedure, the Union appealed 16722 and 51724,
the ironworker and storeroom grievances, respectively, to
arbitration on August 11, 1972.6 The first of the three
janitor grievances, 79726, reached the fourth step on
August 2, 1972. The Company gave its fourth step answer
to the Union by letter of August 14, 1972, and the Union
announced its appeal of 70726 to arbitration on August 15,
1972. The fourth step session on the other two janitor
grievances, 99727 and 100727, was held on August 31,
1972.
Shortly after the janitor instances occurred, i.e., the
Company had refused to pay employees 14 hours pay
when they were called out to come to work and worked on
a day other than their scheduled day off, Phelps, business
agent of the Union, spoke to McCreary. Phelps asked
McCreary why, if the latter was not going to pay 14 hours
pay to employees called out on days other than their
scheduled day off, McCreary did not apply this standard
or position plantwide in all departments. Except for the
earlier relatively isolated instances of an ironworker and a
storeroom employee who had been denied 14 hours call-
out pay, the Company had not denied this call-out pay
throughout the plant. The subsequent denial of 14 hours
call-out pay on three occasions in the janitor department in
June and July apparently indicated to Phelps that there
was now a definitive company policy against such pay. He
therefore asked McCreary why the Company was not
implementing this policy throughout all departments in the
plant. While not denying that Phelps had correctly
diagnosed the logical implications of the Company's
action, McCreary replied, in substance , that the Company
was not implementing its policy in all departments because
to do so would stir up or agitate the entire work force. It is
fairly clear that McCreary viewed such a stirring up as
evidently sections or parts of the ove-all Blast Furnace Department The
various grievances, including the above grievance, are all prefixed by the
symbol or designation "BF," which, I assume , means Blast Furnace The
grievances , also, all are designated by three numbers , separated by hyphens
or dashes as in BF16-72-2 above For convenience , I shall hereinafter refer
to the various grievances simply by their unhyphenated number and without
the BF prefix, e g , 16722 being the February 11, 1972, ironworker
grievance, above
5 This grievance was settled pnor to reaching the arbitration stage The
record reveals nothing further on this grievance or the reason or basis for
settlement
6 As we have seen, arbitration is the fifth and final step in the grievance
procedure
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
something to be avoided. What then did McCreary, the
Company, have in mind? Viewing the entire record before
me, it is my opinion that, since grievances 16722 and
51724, the ironworker and storeroom grievances on the
basic issue of 14 hours call-out pay were already well into
the grievance procedure pipeline and the janitor grievances
were already filed or predictably would be filed because of
the importance of this basic issue to the employees and to
the Union, as well as, of course, to management, the
Company had decided to have its position tested in the
grievance-arbitration procedure before implementing its
policy plantwide. In view of Phelps' experience and
intelligence , I would think it unlikely that he did not
suspect why the Company was not, at that point, denying
14 hours callout on days other than an employee's
scheduled day off throughout the plant. The record reveals
nothing peculiar to the ironworker, storeroom, or janitor
departments that would indicate that the Company's policy
position on callout would be limited to those departments
absent some temporary tactical considerations aforemen-
tioned. I reach this conclusion despite the limited explica-
tion given by McCreary in the above conversation.
After the five grievances, ironworker, storeroom, and
three janitor, were in the grievance procedure pipeline, and
after the first two, ironworker and storeroom, had been
scheduled for arbitration before arbitrator Florey, mutual-
ly selected by the parties, Phelps came to McCreary.
Phelps, according to his testimony, told McCreary that
Phelps preferred to arbitrate the janitor department
grievances and placed the earlier two grievances "on hold."
Phelps testified that his reason for proposing to arbitrate
the janitor grievances on callout, in preference to the
earlier nonjanitor grievances on the same subject, was that
"there was no past practice in the storeroom or ironwork-
ers department of shift work and since this was based on
past practice [the Union position that the five grievances
were entitled to 14 hours call-out pay was based on the
Company's long past practice of making such payments
until the Company refused in the instances that were the
subject of the grievances] that I would rather go with it
[arbitration] in the janitor department." At another point
in his testimony, Phelps stated that the reason he wished to
proceed to arbitration on the janitor cases and substitute
them in preference to the scheduled-to-be-arbitrated
ironworker and storeroom cases was because of the past
practice in the janitor department and "I thought the case
[janitor] was stronger [from the Union's standpoint]."
McCreary was agreeable to Phelps' request to proceed to
arbitration on the janitor cases.?
By letter of October 12, 1972, McCreary w.ute to Phelps
to "confirm our conversation ... to delete" grievances
16722 and 51724, ironworker and s`oreroom, "from the list
of grievances to be arbitrated before Peter Florey on
November 28 and 29, 1972. We further agreed to
7 McCreary testified that Phelps told him that the janitor cases were
factually clearer and that he preferred to try the issue of the 14-hour callout
in the janitor cases as a "vehicle" instead of using the nonjanitor cases
While I am not sure that Phelps used such terms as "vehicle" or a word
equivalent to "test case," I believe that under all the circumstances of
Phelps' approach to McCreary about using the janitor cases in the
scheduled arbitration instead of the prior in time nonlanitor cases, it was
not unreasonable for McCreary to believe, as he testified, that both parties
substitute" grievances 79726, 99727, 100727, the janitor
cases, "for arbitration on those dates." 8 The letter went on
to say that the Company had not yet given its fourth step
answer on two of the named grievances "because it was our
intention to hold these grievances at the fourth step until
other cases on the same issue had been arbitrated.
Inasmuch as we have agreed to substitute these cases [all
three janitor cases ] for those previous cases on the same
issue [ironworker and storeroom], I will prepare and
forward to you as expeditiously as possible fourth step
answers for these two grievances." The Company thereaf-
ter effected the last mentioned promised action and the
janitor cases were ready for arbitration.
The arbitration hearing was held on November 28, 1972,
before arbitrator Florey. The Union was represented by
attorney Bruhn and the Company by attorney Volk, both
of whom discharge the same representative function in the
instant case. Witnesses were called, examined, and cross-
examined, and documentary evidence was introduced. The
transcript of testimony in the above proceeding is part of
the instant record. The arbitrator issued his written opinion
and award on March 14, 1973.
This initial statement in the opinion is:
Subject: Past Practice-Payments for Call-Outs
The arbitrator states that the three grievances before him9
"have the same underlying issue" and he refers to the
Hornbuckle grievance, 99727, as "representative." He then
describes the Hornbuckle facts. Since a specific explana-
tion of what I have been referring to as the 14-hour call-out
issue is desirable I shall s°t forth the Hornbuckle facts in
detail.
The various factual elements of the grievances were
introduced both before the arbitrator and before me in the
instant case.
Hornbuckle was scheduled to be off, Sunday , July 9,
1972. He was scheduled to work the 3-11 p.m. shift on
Monday , July 10, through Friday , July 14, and was
again scheduled to be off, Saturday, July 15. A vacancy
occurred on the 7 am -3 p.m. shift on Monday , July 10.
Employee Hornbuckle was called and came to work to
cover the vacancy on the 7-3 shift on Monday , July 10.
He worked from 12 noon to 3 p.m. Since he was
scheduled to work the 3-11 shift on the same day, he
was paid overtime at time and a half for the 3 hours, i.e.
4 1 /2 hours pay, plus his straight time rate for the 3-11
shift that he worked.
The Union's position on the grievance was and is that
Hornbuckle should have received 14 hours pay for the 3
hours he worked on the 7-3 shift since he was called out to
work on that shift.i° The Company's position was and is
that since the employee filled a vacancy on the day he was
scheduled to work, he was not eligible for the 14-hour call-
out pay.
were proceeding to arbitration on theJamtor cases to test the basic question
of whether or not employees were entitled to the 14-hour call-out pay, since
this was the issue in all five pending cases.
8 The letter then refers to three other grievances scheduled for
arbitration but these grievances are unrelated to the instant case.
9 The three janitor grievances
10 The same basic issue is involved in all the 14-hour call-out grievances
GRANITE CITY STEEL COMPANY 883
As set forth by the arbitrator in his opinion, "The
relevant contract provisions of Article V read:" 11
(par. 18) In the event an employee is called to work
on a day on which he is scheduled to be off, without
having agreed to work on such a day prior to leaving
the plant on the last shift worked, he shall have a
guarantee of twelve ( 12 hours) pay plus two (2) hours
call-out pay, for the particular shift he is called out
on.12 However, when it is determined that an employee
has worked seven consecutive days within a work week
the employee's pay will be recalculated to pay double
time for the work performed on the second day of his
two unscheduled days and if a call-out was involved on
such day, the regular two-hour call-out pay will also
apply. . . . (par. 19) If an employee is requested and
agrees, prior to leaving the plant on the last shift
worked, to work on a day on which he is scheduled to
be off, he shall be paid at the rate of time and one-half
for such day; provided, however, an employee working
seven consecutive days in the week will be paid in
accordance with the seventh day provision as outlined
in Paragraph 15. (par . 20) In the event an employee is
called out to work after termination of the day shift
(4:30 p.m.), due to breakdown of equipment, he shall
be paid as follows:
(par. 21 ) 1. Two (2) hours straight timeas'call-
out'pay.
(par. 22) 2. Time and one-half pay for actual
hours worked, but not less than four (4) hours at
time and one-half pay.13
The arbitrator's opinion states that for approximately 30
years the Employer has paid 14 hours pay for a callout as if
the callout had been made under the conditions of article
V, paragraph 18. The evidence before me is to the same
effect, i.e., for 30 years 14 hours pay had been paid for a
callout irrespective of the number of hours worked and
irrespective of whether or not the employee called out was
on his scheduled day off . Both before the arbitrator and
before me, the evidence reveals that early in 1972, after an
audit of pay practices and so forth , the Company,
unilaterally, in certain departments, but not in all depart-
ments in the unit, refused to pay 14 hours call-out pay
because it believed such pay was not required by the
contract or in any of a series of written supplement
agreements between the parties. In the Hornbuckle case,
for instance, the employee was not called out on his
11 The same contract evidence was introduced in the instant hearing.
The written Hornbuckle grievance , as presented to the Company by the
union steward on behalf of the employee, cited art . V, par. 18.
12 It was and is the Company 's position that Hornbuckle and the other
12-hour call-out grievances were not called out on a day on which he or they
were scheduled to be off. This is factually accurate . Footnote nine.
13 Paragraph 20, 21, and 22 apply to maintenance employees who are
also in the unit represented by the Union. Footnote mine.
14 The Company also took the position that the 14-hour call-out pay
practice had its origin in the 1940 's in the World War II period and that
such conditions no longer exist and that the continuance of the practice was
economically unjustified . Thus the arbitrator in describing this argument
refers to the Company's contention that the practice arose "during the
manpower shortage of World War II with its restrictions on wage
increases. .
15 The only exception to the 30-year practice was with respect to
scheduled day off and, in the Company's view, he therefore
did not meet the 14-hour call-out pay condition set forth in
article V, paragraph 18 of the contract.14 The opposing
position is and was that the long established practice of
paying 14 hours pay in all call-out situations could not be
changed unilaterally.15
By describing the section of the arbitrators opinion
entitled "Findings," I will note that the arbitrator at the
conclusion of the arbitration hearing received briefs from
counsel for the Union and for the Company, respectively.
These were briefs that ably and cogently set forth the
contending positions, and, from reading them16 and from
reading the arbitrator's opinion and findings, I have no
doubt that he was aware of what I consider to be the basic
issue in the 14-hour call-out matter, i.e., whether or not the
30-year practice was unilaterally immutable despite any
other factors in the case, or, as the Union stated in its brief
to the arbitrator. "The proper resolution of these griev-
ances is dependent upon the interrelationship of the above-
mentioned contractual provisions and the parties' past
practice."
Initially, in his findings , the arbitrator rejected the
Company's "successor" argument and found that the
takeover of Granite City by National Steel had no impact
on the contractual relationship between the parties,
particularly since National became a party to the Septem-
ber 1, 1971, agreement.17
The arbitrator states his "reasons why past call-out
payments cannot reasonably be considered a practice in
the commonly accepted labor relations meaning." He then
states:
First of all, the subject matter of the alleged practice is
specifically covered in the Basic Agreement. The
parties have specifically bargained on the subject-
matter of call-out pay and the unilateral extension of
call-out benefits in the 40s clearly conflict with the
unambiguous provisions of the Basic Agreement.
s s s * s
Moreover, in light of the long standing procedure of
reducing local understandings to writing as Supplemen-
tal Agreements, the reference to `local working condi-
tions' in Marginal Paragraph 87.13 [of the contract]
can only reasonably apply to such written Supplemen-
tal Agreements ....18
Second, a practice must have uniform application and
employees in the maintenance department who, on callouts, were paid in
accordance with article V, par. 20-22 of the contract.
16 The briefs are in the instant record.
17 No "successor" contention has been made in the instant hearing or in
the Company's brief to me . I therefore do not consider that any "successor"
question is before me.
18 Footnote mine . Article XIX of the contract provides : "It has been the
practice of the Company and the practice of the Company and the Union to
work out supplementary agreements . These agreements have been mutually
satisfactory and are continued as a part of this contract "
Hamilton, a supervisor, testified in the arbitration hearing that he was
hired in 1955 as a rank-and-file employee. He was a union steward in 1960;
union secretary and member of the negotiating committee in 1962-63;
business agent of the union in 1965 and 1966 and then a company
supervisor. He testified that until 1965 both the Union and the Company
were from time to time confronted with alleged agreements or supplements
(Continued)
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be nondiscriminatory. Here the alleged practice clearly
does not apply under circumstances outlined in
Marginal Paragraph 19 of Article V and clearly
discriminates against maintenance employees who are
called out . . . Discrimination as to wages is specifical-
ly prohibited by Article II, Marginal Paragraph 9.
Finally, . . . it should be noted that the Union
repeatedly proposed changes in the quoted contract
provisions to provide uniform application for the call-
out payments. For instance, in 1968, the Union's
proposals included the following:
Paragraphs 18 and 19-Call Out-change to provide:
An employee who is called out ahead of his schedule
and then continues to work his regular shift will be paid
time and one-half his regular rate for his regular shift
with meal ticket and all other benefits.
All call-outs for all workers will be paid for at the rate
of fourteen (14) hours whether on day off or after
completion of shift.
All breakdown call-outs will be paid at the rate of
fourteen ( 14) hours for the shift called with time and
one-half for hours worked after any shift break.
Continuing, the arbitrator stated, "the submission of this
proposal is at least an implicit acknowledgement by the
Union that the alleged practice lacked contractual recogni-
tion." 19
"In the light of these unique circumstances , it must be
concluded that the disputed call-out payments were made
unilaterally by supervision in its discretion without
creating a practice and that payments which exceed the
requirements of the collective bargaining agreement can be
discontinued." 20
The arbitrator goes on to say that the indication is that
the decision to discontinue the 14-hour pay was not
communicated to the grievants prior to their acceptance of
or understandings pertaining to various parts of the basic contract . In 1965,
the parties decided to "negotiate and place in a book all recognized
supplements agreed to by both parties." This was done, according to
Hamilton.
In the instant hearing McCreary testified , without contravention, that
"the supplement book makes itself self-exclusive . The preamble to the
supplement book states that it contains all of the supplemental agreements
outstanding between the parties as of some time in 1966 when it was entered
into and it has subsequently been added to with duly executed supplemental
agreements." As far as I am aware , no supplemental agreement was
introduced or alleged to exist before the arbitrator or in the instant hearing
that states in words or in substance that all callouts will be paid for at the
rate of 14 hours whether the employees is on his scheduled day off or not. I
am aware that article XIX , above, does not state that only those practices,
understandings , or agreements that are in the book of supplementary
agreements are valid and binding . I find it unnecessary to state my overall
interpretation of this supplementary agreement aspect since , as will appear
at a later point , I am not rendering a de novo opinion on the merits of the
issue that was before the arbitrator.
19 Footnote mine . At the arbitration hearing Hamilton testified that "the
union , to my personal knowledge , in 1961, '62, '63 , and'65, [the matter also
came up in the 1968 and 1971 negotiations . The arbitrator refers to the 1968
proposals specifically ] was fearful because there was no protective
language, and at each negotiation would present a proposal to the Company
on paying all call-outs, even the breakdown call-outs, at the fourteen hour
rate." According to Hamilton , these proposals were "asked [by the Union ]
and respectively refused [by the Company ]." Phelps referred to the Union's
the callouts and therefore the grievants are entitled to the
14-hour pay for the shifts which gave rise to the grievances
but not thereafter.
"A second unresolved problem was posed when it
became known at a later arbitration hearing involving the
same parties that the disputed payments were not discon-
tinued uniformaly for all employees in the bargaining unit
... which, in itself, may present a violation of the non-
discrimination provisions of Article II, Marginal Para-
graph 9 . Since this subject was not discussed in the
processing of these grievances , the case is returned to the
parties for further consideration . Should this issue remain
unresolved thirty days from the date of this award, the
parties shall contact this arbitrator informally to decide on
procedural steps for the final disposition of the case."
After receipt of the arbitrator' s decision, the Union and
the Company met on March 22, 1973. McCreary suggested
that the Company and the Union jointly issue a letter in
the plant, stating that the Company would discontinue on
a specific day the 14-hour call-out pay for callouts on days
when an employee was scheduled to work (was not
scheduled off). Phelps rejected the proposal. He said that
the arbitrator had exceeded the scope of what he was
supposed to arbitrate and that it was and is the Union's
position that the grievance was limited to the janitor
department. McCreary contended that the arbitrator had
decided with respect to the grievance that the Company
was not obligated to pay the 14-hour callout and had also
decided that for the Company to discontinue 14-hour
callout only in the janitor department would violate the
nondiscrimination clause of the contract . Phelps said that
if the Company wanted to discontinue the 14-hour call-out
pay, it should wait until the next contract negotiations in
1974 or the parties should bargain about the matter until
they reached agreement . McCreary did not agree to these
suggestions. McCreary also said that the arbitrator had
decided that pending grievances should be paid the 14-
hour callout because the employees involved had not been
notified beforehand of the discontinuance of the 14-hour
concern about the lack of universal application of the 14-hour call-out pay.
He testified , "We wanted it that all call-outs would be provided , would be
paid at the rate of fourteen hours , and we wanted it in writing " Again,
when his attention was directed to the two last paragraphs , above, of the
1968 union proposal , one of which specified "all call-outs .... and one
which referred to "all break down call -outs ..., " he was asked if "All call-
outs" related to breakdown callouts . He answered, "It, in part , related to the
whole thing, but we also wanted it entered into the contract , you know,
because we were receiving it and we felt that it should be written down."
This would indicate that the Union desired (1) to have the existing practice
of 14-hour call -out pay, for all employees except maintenance employees on
breakdown , committed to writing in the contract; and (2) to also provide in
writing that maintenance employees on breakdown would receive 14-hour
call-out pay . In the instant hearing, union counsel stated , ". . . 1968 at least
and onward [the call-out matter was again discussed in the 1971
negotiations , apparently along the same lines and with the same result as
previously] the union has made an attempt to get what is an existing
practice into writing . They have been rebuffed by the Company ." In 1968,
in response to the union proposal , the Company noted and acknowledged
that the employees were enjoying 14-hour call -out pay on days when they
were not scheduled to be off . However, the Company refused to agree to
place this matter in writing and incorporate it into the contract unless the
Union would agree to grant the Company much wider latitude in
assignments of work in such situations . The Union refused to agree to the
latter so the 14-hour call-out proposals of the Union were not agreed to by
the Company and were rejected.
20 Arbitrator's opinion.
GRANITE CITY STEEL COMPANY 885
callout but that such payments would not be due
thereafter; McCreary said, according to Phelps, that the
Company would therefore pay all the pending grievances
the 14-hour callout, including the janitor, ironworker
(Martin), and storeroom (Daley) grievances.21 The parties
then concluded their meeting by agreeing that they would
have to return the matter to the arbitrator. McCreary
drafted a proposed letter to the arbitrator to be signed by
both parties. He submitted the letter to Phelps, who made
revisions thereon and McCreary agreed to the revisions.
This joint letter to the arbitrator, dated March 27, 1973,
signed by McCreary and Phelps, advised the arbitrator that
the application of his findings "has not been mutually
agreed to by the parties." The letter stated that, as the
arbitrator was aware, the Company had not discontinued
the 14-hour call-out pay in all departments. Among the
reasons for this limited discontinuance was the Company's
unwillingness "to risk the extra-legal consequences in
which such a unilateral action might result. Rather, the
Company elected to attempt to resolve the issue by
discontinuing the payments in the Janitor Department,
processing the ensuing grievances to arbitration and
applying the arbitrator's decision to all of Local 50's
jurisdiction. Local 50 sought to resist any change in the '14
hour call-out' payment."
The letter continued, and described "the dispute," to wit,
stating that the 14-hour call-out matter as to employees in
the janitor department "has now been decided by you.
However in your findings you state that a question of
discrimination may arise under marginal paragraph 9 of
the Basic Agreement because the Company has not
discontinued the practice uniformly throughout the Bar-
gaining unit."
The letter states that the parties met March 22, 1973,
pursuant "to your Award." The position of the parties on
March 22 is then described. The Company asserted that
the award does not require it to make further payments
exceeding the contract provisions and that to avoid being
charged with violating the nondiscrimination provision of
the contract, the parties should jointly advise all employees
in the bargaining unit that the payments would be
discontinued as of a specific date in the immediate future.
The litigated janitor grievances would be paid and pending
grievances would be paid absent proof of prior notice of
discontinuance of the 14-hour callout by the grievants.
"Taking the position that your award related only to the
Janitor Department, the Union rejected this proposal and
suggested that the parties agree to continue the 14 hour
call-out payments without change until the expiration of
21 Although , of course , the Union was glad to have the Company
acknowledge that all the pending grievances on the callouts would be paid,
it was quite clear that the Company's action was pursuant to the arbitrator's
decision and that the inclusion of the nonjanitor grievance payments was
also according to the Company 's view of the scope of that decision. On this
aspect at least the Union did not argue that the arbitrator 's decision was
limited to the janitor department and had no effect beyond that department.
22 Neither in this colloquy with the arbitrator nor in the instant hearing
has the Union claimed or adduced evidence , that might distinguish other
departments from the janitor department on the matter of 14-hour callouts,
other than the argument that the arbitrator 's authority was limited to the
janitor grievances before him . As we have seen, the parties had substituted
the janitor cases in arbitration in place of the chronologically earlier and
previously scheduled ironworker and storeroom cases at the Union's
request . The Union 's request was based on its belief that the janitor cases
the current collective agreement . This suggestion was
rejected by the Company. The parties then agreed to detail
their dispute in a jointly signed letter to you...."
After the arbitrator received the above letter, there was a
three-way telephone conversation between the arbitrator,
Phelps, and McCreary. According to Phelps, the arbitrator
asked what the parties wanted him to do. McCreary said
that he thought that the arbitrator had decided the matter
properly. Phelps said that the only matter before the
arbitrator had been the janitor department grievance and
that Phelps wanted nothing done with respect to other
departments and that the arbitrator had no authority as to
the rest of the departments. The arbitrator replied that he
had already decided that the Company is "not obligated to
pay in this matter" except as to the grievants who had not
been notified beforehand of the discontinuance of the 14-
hour callout, "and to only apply this to the janitor
department would be against the non-discrimination clause
in the contract." Phelps said that he did not want the
arbitrator to do anything regarding other departments and
the arbitrator lacked such authority.22 The arbitrator said,
"I have already decided the case and I will correspond with
you."
By letter of April 13, 1973, to Phelps and McCreary, the
arbitrator stated:
Confirming our telephone conversation in which we
discussed your joint letter of March 27, 1973, no further
proceedings are required.
As stated in Marginal Paragraph 11 of my award the
disputed call-out payments can be discontinued, but
such action, as spelled out in Marginal Paragraph 13,
must be uniform.
Under these circumstances, the Company has correctly
offered to implement my award by paying the grievants
in the cases which were the subject of the award and in
those grievances which have been held pending receipt
of the award, because their department was singled out.
In a conversation with Phelps a few days after the parties
had received the above letter, McCreary suggested that, in
view of the arbitrator's decision, they post a joint notice in
the near future to the effect that the Company would no
longer pay 14 hours pay when the callout was not on the
employee's scheduled day off. Phelps refused, reiterating
that the arbitrator had exceeded his authority. Phelps said
he was willing to bargain about the matter "if he
were stronger from the union standpoint because of longer and clearer past
practice in that department . I find it difficult to believe that if the arbitrator
had found in the janitor case that the Company could not unilaterally
discontinue the 14-hour callouts, that the Union would not have considered
this dispositive of the matter in not only the janitor but in other
departments . Indeed in the Union 's brief to the arbitrator , submitted after
the hearing and prior to decision, the Union stated:
This union further respectfully submits that the Company ought to be,
and respectfully requests that it be , instructed that both by the term of
the contract as written, and by a binding past practice which has
become an inviolate term of the contract , it may not in the future fail to
pay employees who work shift work 14 hours for any and all call-outs
under any circumstances, except as specifically provided for in
paragraph 19 of the basic agreement.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[McCreary] would wait until the '74 negotiations ses-
sions...... Later in the day, McCreary advised Phelps
that he was sending him a copy of the notice McCreary
was posting "today or tomorrow." Phelps received the
notice , evidently on April 23.23 The notice that was posted,
dated April 24, 1973, stated that pursuant to the arbitra-
tor's decision, the employees were hereby notified that
effective April 29 the 14-hour call-out provisions of the
contract would be administered in accordance with
paragraph 18 of the contract.24 The Union filed an unfair
labor practice charge with the Board on April 26, 1973.
At the hearing, the General Counsel undertook to
introduce, over Respondent's timely objection, evidence
regarding the description of work by supervisors on a dual
call-out situation. Respondent's objection to the evidence
on this point was that it was not alleged in the complaint. I
expressed the view on the record that the matter was not
alleged in the complaint. The General Counsel responded
that the evidence involved callouts and whether employees
would be "paid 14 hours for a call-out" in a dual callout or
whether the Company had unilaterally changed the call-
out pay standard. At the hearing I stated that I would
overrule Respondent's objection pending my further
consideration of the matter but that by permitting the
evidence regarding dual callouts I was not necessarily
indicating my ultimate ruling on the matter of whether
dual callouts were properly an issue within the scope of the
complaint. Accordingly, the matter was litigated by the
parties.
The evidence on the foregoing dual call-outs matter is
that on April 29, 1973, a crew of men was "called-out," and
apparently the supervisor who made the callout told the
men at the time of the callout that they were to remove a
"sticker" on a particular coke oven.25 While working on
the oven, the men were told that when they finished they
were to remove a sticker from another oven. The men
telephoned Phelps from the plant at I a.m. about the
matter. Phelps called the superintendent; the latter then
called the foreman at the plant to ascertain the facts and
then called back to Phelps. The superintendent told Phelps
that he had instructed the foreman to release the men when
they completed work on the first oven but thereafter when
men were called out in a similar situation they would be
initially told that the job was to remove oven stickers
without specifying a particular oven.
The crux of the foregoing dispute and similar disputes is
a 1964 understanding contained in the supplementary
agreement book. There, on a grievance at the fourth step,
the Company agreed that thereafter when a supervisor
called out an employee, the supervisor would describe the
job "in general enough terms to include all of the work
which may be anticipated."
In short, before 1964 and thereafter, including 1973,
there were differences of opinion between the Union and
23 McCreary also sent Phelps a copy of a memorandum, dated April 24,
1973, from McCreary to top company supervisors regarding the import of
the arbitrator 's decision.
24 The paragraph , as we have seen, provided 14-hour call-out pay on a
callout on the employee 's scheduled day off. The Company was and is
currently paying callouts as required by the foregoing.
25 Evidently a "sticker" is a not uncommon encrustation or some foreign
body or development that requires removal from the oven to insure the
the Company on situations which I shall undertake to
illustrate . Assume an employee is called out and is told that
the job is the removal of stickers on number 1 oven; later,
as he finishes this job he is assigned to remove stickers on
number 2 oven. Apparently both the Union and the
Company would agree that because of the original
specification of number 1 oven at the time of the callout,
the employee will be paid for two callouts. In other words,
if there is a 14-hour pay for a callout he receives two such
premium payments even though he may have worked only
4 hours on one oven and 3 hours on the second. Assume
the same situation as the foregoing, except that, originally,
when the employee was called out, he was told that the job
was the removal of oven stickers. It is foreseeable that the
Union position would or might be that the description of
the work did not comply with the 1964 supplemental
agreement and the employee had had a dual callout when
he is assigned to work on not one but two ovens. The
Company's view is that it has complied with the supple-
mentary agreement and therefore there was only one
callout. It requires little imagination to see that on the
foregoing situation and in similar situations ,26 the Compa-
ny will initially describe a call-out job in more general
terms than the Union may believe or contend is proper or
as, in its view, is required by the Supplemental Agreement.
It is my opinion that the dual call-out matter is a distinct
situation not alleged in the complaint. The latter, in view of
its particularity, does not allege the dual call-out situation
but confines itself to the discontinuance of call-out pay on
a day when the employee is otherwise scheduled to work. I
therefore reverse my conditional overruling of Respon-
dent's timely objection to the dual call-out evidence and
sustain the objection.
I do not agree with the General Counsel's contention
that since the dual call-out matter was litigated, it is
therefore properly before me. Respondent made timely
objection and the sole reason the matter was litigated was
because I overruled the objection, albeit with a qualifica-
tion. While Respondent could have thereafter refrained
from litigating the matter, prudence indicated, in view of
my expressed desire to consider the evidence in order to
evaluate the General Counsel's contention that dual
callouts were part and parcel of the complaint allegations,
that Respondent litigate the matter. The General Counsel's
contention, that the litigation of the matter has placed dual
callouts in the same posture as other matters alleged in the
complaint, is not persuasive.27
In any event, although the dual callout was not the
subject of an arbitration hearing and decision and it
therefore is not a Spielberg situation,28 the dual callout has
been and is the subject of contractual grievances filed in
August 1973, and thereafter, which apparently are pending.
oven's proper functioning.
26 The dual call-out matter is obviously not one that arises only on coke
ovens but can arise on a wide variety of jobs.
27 See, for instance , Pacific Southwest Airlines, 201 NLRB 647, where
conduct not alleged in the complaint was litigated without objection to its
receipt by Respondent and was therefore adjudicated since it closely related
to matters set forth in the complaint.
28 Spielberg Manufacturing Co., 112 NLRB 1080, 1082.
GRANITE CITY STEEL COMPANY 887
It is therefore my opinion that the Collyer principle is
applicable.29
Other Complaint Allegations
With respect to the complaint allegations that Respon-
dent had unilaterally discontinued payments for overtime
for work performed after a shift change when the employee
had not worked a full 8 hours on the prior shift; and that
Respondent had unilaterally withheld meal tickets from
employees when employees have been paid in excess of
straight time for the prior shift or where they have worked
less than 8 hours on the prior shift ; all contrary to past
practice, the General Counsel adduced the testimony of
employees Martin, Whitehead, Sabo, Kee, and Dix.
As illustrative of the situation involved in the foregoing
allegations, I shall describe the Martin matter. A grievance
was filed regarding Martin and four other ironworkers and
a welder in June 1973. In May 1973, they had worked their
normal shift , 8 a.m. to 4:30 p.m. They were asked to work
overtime and they worked from 4:30 p.m. to 12, plus about
10 minutes past 12. They were paid straight time, 8-4:30;
time and a half 4:30-12; plus time and a half for the short
period after 12 which came to or was equivalent to three
quarters of an hours pay. The grievance was that an
additional 2 1/4 hours pay was owed to the employees
involved in accordance with past practice and paragraph
33 of the contract. The assertion regarding past practice is
correct. The Company's position is that the men were
correctly paid time and a half 4:30-12:30 and since this
was a full 8-hour shift, paragraph 33 of the contract did not
apply. The Union's position in the grievance and at the
hearing is that the employees should have received 2 hours'
pay at time and a half, plus a $1 .40 meal ticket , i.e., 3 hours
pay, plus a $1 .40 meal ticket.
Paragraph 15 of the contract provides that "... all time
in excess of eight (8) hours in any day shall be paid for at
the rate of time and one-half...: .
Paragraph 33 and 33.1 provide:
When less than two _(2) hours of overtime is worked at
the end of a shift, the employee will receive two (2)
hours at the overtime rate of pay. Meal allowance of
$1.40 will be paid in lieu of lunch period.
The Company agrees that employees will, after two (2)
hours of overtime following the completion of an eight
(8) hour shift be entitled to a $1.40 meal ticket... .
I shall describe one other illustrative example. In April
1973, employee Whitehead was on his scheduled day off.
About 8:30 p.m. he was called out to work on the 3-11
p.m. shift. He clocked in at 9:08 p.m. and worked to 11:36
p.m. He was paid 14 hours call-out pay, plus a half hour's
3e Collyer Insulated Wire, 192 NLRB 837.
30 On April 9, 1973, McCreary sent Phelps a copy of a memorandum
that was being posted . The memorandum referred to pay practices contrary
to the contract provisions , e.g., premium pay when less than 8 hours were
worked "solely" because an employee worked beyond shift change.
Paragraphs 15, 33, 33.1 of the contract are referred to. "Effective April 15,
1973, our payment of premium pay will be in accordance" with the above
paragraphs of the contract . Phelps typed on the bottom of this document,
"The statements in the above letter have not been agreed to by the Union
and are considered by the Union to be in direct conflict with the agreements
pay and a meal ticket. The Union's position on the
Whitehead grievance is that in addition to the 14 hours
call-out pay the employee was entitled to 3 hours pay (2
hours at time and a half) and a meal ticket. This was the
past practice.
The Company's position is that paragraph 33 does not
apply simply because an employee has worked beyond the
normal shift hours; but that it applies only when an
employee has worked the required time to entitle him to
overtime pay; and Whitehead worked only from 9:08 p.m.
to 11:36 p.m.30
All these instances and matters that I have illustratively
described in this section of my Decision, as the matters
alleged in the complaint, are the subject of grievances that
have been processed through the contract grievance
procedure. The Union has appealed to arbitration. The
Company on August 29, 1973, sent the Union a list of
prospective arbitrators. This is the parties' traditional
procedure under the contract and the Union selects an
arbitrator from the aforesaid list. If none of the listed
persons is satisfactory to the Union, a list of seven names is
secured from the Federal Conciliation Service and one is
mutually selected as arbitrator. There is neither evidence
nor claim that the Company has refused to process
grievances and to accept arbitration as required by the
contract. Apparently on these matters referred to in this
section of my Decision the Company believes that its
position on the grievances is supported by the contract and
supplemental agreements as interpreted by the Company.
The Union evidently reads the contract differently and in
the light of past practice. I express no opinion on the merits
of these positions. In my opinion the Collyer3l principle
applies to the allegations of the complaint described in this
section of my Decision.
Conclusions
As I have indicated, above, it is my opinion that with
respect to the matters alleged in paragraph 8A and C of the
complaint, I should, and I will, defer to the grievance-
arbitration procedure established by the parties in their
contract.32
The matter alleged in paragraph 8B of the complaint, the
discontinuance of 14-hour call-out pay on a day on which
an employee is otherwise scheduled to work, is, in my
opinion, governed by the Board's Spielberg doctrine 33 and
by the United States Supreme Court's strong endorsement
of the arbitration process as "the desirable method" of
settling disputes between parties to a collective-bargaining
contract over what can or cannot be done or what must be
done or must not be done under their contractual
agreement and relationship.34
In accordance with Spielberg requirements I am satisfied
between the Company and the Union ...: .
31 Collyer Insulated Wire, 192 NLRB 837.
32 Collyer Insulated Wire, supra.
33 Spielberg Manufacturing Company, supra
34 "Final adjustment by a method agreed upon by the parties is hereby
declared to be the desirable method of settling grievance disputes arising
over the application or interpretation of an existing collective agreement."
United Steel Workers of America v. Warrior & Gulf Navigation Co., 363 U.S.
574, 578.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the instant arbitration on the 14-hour callout was "fair
and regular" and "all parties had agreed to be bound." The
General Counsel and the Union contend that the third
Spielberg requirement has not been met and that the
arbitrator's decision was "clearly repugnant to the purpos-
es and policies of the Act."
I have previously delineated the arbitrator's decision. It
is not my function to defend or to attack the arbitrator's
decision as such but simply to explicate and to understand
that decision and to determine whether it is clearly
repugnant to the purposes and policies of the Act.
The arbitrator was fully aware of the 30-year past
practice and, after initially captioning the subject of the
proceeding before him as, "Subject: Past Practice-Pay-
ments for Call-Outs," he referred to and recognized the 30-
year practice as a fact. He recognized and described the
union contention "that a practice, hoary with tradition,
cannot be changed unilaterally." He made it clear and
stated that he was not deciding whether the Company is at
liberty to discontinue "any and all practices" not incorpo-
rated in the contract and the supplemental agreements
thereto.
When the arbitrator stated that the past practice, which
he had recognized to be a practice in the real or factual
sense , was not a practice "in the commonly accepted labor
relations meaning," he meant, I believe, that it was a
practice that could not prevail over other factors that he
proceeded to describe in paragraph 8-11 of his decision.
After setting forth his reasons why the actual or factual
practice could not prevail over the other factors he
described, and thus, according to his phraseology, the
practice was not a governing and determinative practice in
the commonly accepted labor relations meaning, he stated,
in effect, that a "practice" had not been created that was
binding on the Company and that the Company could take
unilateral action thereon.
The basis for determining whether or not the arbitrator's
decision is clearly repugnant to the purposes and policies
of the Act is not whether the Law Judge or the Board
would have rendered the same decision initially or whether
the Law Judge or the Board agree with the arbitrator. The
Board in Spielberg could conceivably have stated that the
standard is not whether the arbitrator's decision was
clearly repugnant to the purposes and policies of the Act
but whether the Board agreed or disagreed with his
decision or whether the Board would have rendered the
same decision initially. The last-mentioned standards could
have been premised on the assertion that presumptively the
Board does not render decisions that are clearly repugnant
to the purposes and policies of the Act, and, unless the
Board agrees with an arbitrator's decision and eliminates
even the possibility that the Board would have made a
decision different or at variance from the arbitrator's, then
it is in effect countenancing a decision that is repugnant to
the purposes and policies of the Act. From the foregoing it
is apparent that the "clearly repugnant . . ." standard is
not a standard of agreement or disagreement or of
35 "The Federal policy of settling labor disputes by arbitration.. "
United Steelworkers of America v. Enterprise W& C Corp., 363 U.S. 595, 596;
"The grievance procedure is, in other words , a part of the continuous
collective bargaining process." Steelworkers v. American & Gulf Navigation
correctness but a standard of restraint as conveyed by the
words "clearly repugnant" and is perhaps a recognition of
the Supreme Court's position on the arbitration of labor
disputes.35
The arbitrator's decision can be summarized as follows;
the practice does not prevail because:
1) The parties have specifically bargained about call-
out and have placed in the contract a call-out
provision. Paying. call-outs in circumstances other than
specified in the call-out provision is contrary to the
express provision of the contract.
2) There is a long standing procedure whereby the
parties have incorporated modifications, clarifications,
or supplements to the contract in a book of Supplemen-
tal Agreements and the contract refers to this book of
Supplemental Agreements. There is nothing in this
book about paying 14 hour call-out on a day on which
an employee is otherwise scheduled to work.
Argument Pro the above: The foregoing is factually
correct as to the provisions of the written contract and
the Supplemental Agreements. If a contract specifies
and names 7 paid holidays, it excludes, as far as the
terms of the written contract are concerned, an 8th paid
holiday as part of the written contract and it shows that
the parties have negotiated about and concluded a
written agreement on paid holidays. The instant parties
have negotiated on call-out pay and have placed their
agreement thereon in the contract.
There are written Supplemental Agreements that deal
with a variety of contract matters and one such
agreement (1964) deals with call-outs i.e. that the
supervisor shall describe the call-out job in terms
general enough to include all work anticipated. This
1964 Supplemental Agreement relates to 14 hour call-
out pay, since, depending on the description of the job
at the time of the call-out, the employee might be
entitled to one 14 hour call-out pay or to two 14 hour
call-out pays if he performed additional work not
specified and described at the time of the original call-
out. There is, however, no Supplemental Agreement on
paying 14 hour call-out on days when an employee is
otherwise scheduled to work.
Argument Contra: There is no provision in the
contract or in the Supplemental Agreements which
states that the Company shall not or will not pay 14
hour call-out when it is on a day on which the
employee is otherwise scheduled to work. Further, what
is or is not in the written contract and Supplemental
Agreements is immaterial and certainly not controlling
in view of the 30 year past practice. The practice is the
determinative factor and is a term of the contractual
agreement between the parties that cannot be changed
unilaterally.
3) Over a period of years in contract negotiations,
the Union has sought to have the Company agree to a
Co., supra at 581 ; and in the same decision a statement that the arbitrator's
"source of law" is the contract and "the practices of the industry and the
shop"; finally, "It is the arbitrator's construction which was bargained for
... "at 599.
GRANITE CITY STEEL COMPANY 889
change in the contract provisions regarding call-outs.
Typically, in the 1968 negotiations the Union proposed
to apply the 14 hour call-out practice to maintenance
employees; and it also sought a provision that would
provide the 14 hour call out pay whether on the
employee's day off or after completion of shift. The last
mentioned proposal was an attempt by the Union to
secure contractual status for the existing past practice.
The proposal was an implicit acknowledgment of the
Union's concern and of the Union's recognition that
the practice lacked consensual contractual status and
remained within the control of the Company; and it
was implicit recognition that the contract and supple-
mental agreements provided for 14 hour call-out pay
only on a day when the employee was not otherwise
scheduled to work. While the Company acknowledged
that it was paying employees, other than maintenance
employees, 14 hour call-outs whether on the employee's
day off or not, it consistently refused to bind itself to
do this as a matter of contract agreement.
Argument Pro. No additional argument
Argument Contra: The Union in making the
aforementioned contract proposals was primarily inter-
ested in trying to secure for the maintenance employees
the 14 hour call-out that other employees enjoyed. As
to the latter employees, the Union simply felt that since
the practice was being followed by the Company of
paying the call-out whether on a scheduled day off or
not, it should be incorporated into the contract.
Moreover, although the Company always rejected the
proposal it acknowledged and did not deny the
practice. Consequently, the history of such negotiations
is immaterial and the practice remains immune to
unilateral change.
4) The practice was not uniform as to all employees
in the unit represented by the Union since it did not
apply to maintenance employees and this is discrimina-
tory and in violation of an express contract provision
prohibiting discrimination as to employees on wages,
conditions of employment and so forth.
Argument Pro: By not applying the 14 hour call-out
to maintenance employees, -the Company was confirm-
ing and demonstrating that the 14 hour call-out was
governed by the terms of the contract and that the
practice was at all times a matter within the control of
the Company. The Union over the years had sought to
change this situation by proposing changes in the
contract but these proposals were consistently rejected.
Although there was a 14 hour call-out practice as to the
non-maintenance employees, it cannot be assumed that
this practice had a consensual contractual status
inasmuch as it was in violation of the non-discriminato-
ry provision of the same contract. Further, a discrimi-
natory practice in violation of the contract is not a
practice that should be entitled to preservation nor is it
the kind of practice immune to change by the
Company's unilateral action where the practice is at
variance with the terms of the contract.
Argument Contra: Uniformity or lack of uniformity
in a practiceis an immaterial and irrelevant considera-
tion. Moreover, the practice was uniform and non-
discriminatory as to all non-maintenance employer. It
is the practice as to non-maintenance employees that is
in issue and this practice was immune to unilateral
change.
In the Spielberg case itself, the facts involved fairly
typical alleged discriminatory refusals to reinstate employ-
ees after a strike. An arbitration board voted 2 to 1 and
"entered a written decision which merely states that the
Company was justified in refusing to reinstate the four
individuals." The matter was then fully litigated before a
Board Trial Examiner who found and explicated why the
four employees had been illegally discriminated against in
violation of Section 8(axl) and (3) of the Act. The Board
deferred to the arbitration award, stating "This does not
mean that the Board would necessarily decide the issue of
the alleged strike misconduct [the issue before the
arbitrators and the Examiner] as the arbitration panel did.
We do not pass upon that issue." Since the Trial
Examiner's decision was directly contrary to the arbitra-
tion decision, it might be inferred, if the correctness of a
decision determined whether it was "clearly repugnant
," that one of the decisions was "clearly repugnant
"; and, since the Board deferred to the arbitration
decision, it evidently regarded that decision as not "clearly
repugnant.... " Quite clearly, however, in my opinion,
the Trial Examiner's decision, although directly opposite to
the arbitration decision, and whether it was right or wrong,
it cannot be regarded as "clearly repugnant . . ." and the
Board indicated that it would not necessarily have decided
the issue as did the arbitrators.
If it be said that at the time of the Spielberg decision the
Board did not fully understand its own deferral standards,
particularly the meaning of "clearly repugnant . . .," I
disagree. In Spielberg the Board had before it and cited its
own Monsanto casess where it refused to defer to an
arbitration award that it considered was "at odds" with the
Act.37 In an even earlier case the Board had deferred to an
arbitration decision even though the Board considered the
decision to be wrong and would have found a violation of
the Act.38
Following Spielberg, the Board has adhered to the
standard that the question of whether an arbitrator's
decision is clearly repugnant to the purposes and policies
"is not to be determined on the basis of whether the Board
would reach the same result...." 39 or whether the
arbitrator's decision is "necessarily ... the one the Board
would issue.."40 But where the arbitrator's decision has
begged or avoided the basic issue and has ignored a long
36 Monsanto Chemical Company, 97 NLRB 517.
37 The case involved the discharge of an employee under a union-
security contract clause for nonpayment of dues in months prior to the
Union's certification . In Spielberg terimnology, the arbitrator's validation of
the discharge, in my opinion , was quite "clearly repugnant...: .
38 Timken Roller Bearing Company, 70 NLRB 500.
39 Terminal Transport Company, Inc., 185 NLRB 672, 673.
90 Howard Electric Co., 166 NLRB 338, 341 . In International Harvester
Company, 138 NLRB 923, 929, the Board deferred to the arbitrator's award
"since it plainly appears to us that the award is not palpably wrong To
require more of the Board would mean substituting the Board 's judgment
for that of the arbitrator, thereby defeating the purposes of the Act and the
common goal of national labor policy of encouraging the final adjustment
of disputes, 'as part and parcel of the collective bargaining process.' "
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
line of Board and Court precedents, the Board will refuse
to defer to a decision as clearly repugnant to the purposes
and policies of the Act.41 However, there is no purpose or
policy of the Act that a long-established practice by an
employer can never be changed unilaterally no matter
what the facts or circumstances in a particular case.42
One of the General Counsel's contentions is that
Respondent is obligated to refrain from unilateral actions
in violation of Section 8(a)(1) and (5) of the Act and
Respondent should not "be allowed to arbitrate its unfair
labor practices." If this is intended to indicate that there
are two separate issues , ( 1) unilateral action in violation of
Section 8(a)(1) and (5) of the Act; and (2) the issue of
whether Respondent did act properly in taking unilateral
action in the light of the factors relied upon by the
arbitrator, I do not agree.
Quite clearly the arbitrator did not purport to render his
decision under the aegis and caption of Section 8 (a)(1) and
(5) of the Act and thus find or not find an unfair labor
practice as such. However, it is clear that the issue before
the arbitrator and passed upon by him was whether or not
the Respondent could lawfully and unilaterally change the
14-hour call-out in view of the 30 year practice; the
wording of the contract; the supplemental agreements; and
the history of negotiations; and other relevant factors. As
stated by the Board in Collyer, supra at 841-842, ". . . the
arbitral interpretation of the contract will resolve both the
4' Radio Technical School, Inc., 199 NLRB 570. This case involved a
Christmas bonus paid by the employer to employees for a period of years
although there was nothing in the contract about a Christmas bonus. The
bonus was then discontinued unilaterally . The arbitrator simply held that
the bonus was a discretionary gratuity and that it could not become a
contractual obligation of the employer unless set forth in the contract. Such
a decision , of course, flew in the face of the many Board decisions in
Christmas bonus cases and the legal principles established therein. In my
opinion this Radio case is clearly distinguishable , on the facts as well as in
the nature and the basis of the arbitrator's decision , from the situation in the
instant case.
42 International Equipment Co., 114 NLRB 1371, 1372, 1382-84,
unfair labor practice issue and the contract interpretation
issue . . ." unless the arbitrator's decision fails to conform
to the Spielberg standards. Moreover, the grievance-arbi-
tration procedure of the contract is, in the words of the
Supreme Court, "a part of the continuous collective
bargaining process ." 43 Nor do I believe that the Compa-
ny's actions show a pattern of trying to undermine the
Union. The evidence demonstrates that the Company
continues to operate under the contract and to recognize
the Union. The parties disagree on certain pay actions that
are justified or unjustified according to the opposing views
on the contract and the past practice.
I shall defer to the arbitrator's decision on the complaint
allegations regarding the 14-hour call-out pay since it is my
opinion that the arbitral decision meets the Spielberg
standards, including the requirement that the decision be
not clearly repugnant to the purposes and policies of the
Act.
As previously stated, it is my opinion that the other
complaint allegations are cognizable by the contract's
grievance-arbitration procedure and in accordance with
Collyer I defer to the available grievance-arbitration
procedure.
ORDER
The complaint be, and hereby is, dismissed in its
entirety.44
affirming dismissal of Section 8(a)(5) allegation as to discontinuance of
bonuses and sick leave pay; Allied Manufacturing Co., 203 NLRB No. 85;
Murphy Diesel Company, 179 NLRB 149.
43 Steelworkers v. Warner & Gulf Navigation Co., supra at 581.
44 On the Collyer aspect of my decision, i.e., the complaint allegation
issues for which contract arbitration is available , jurisdiction is retained
solely for the purpose of entertaining an appropriate and timely motion for
further consideration if (1) the dispute has not , with reasonable promptness,
either been resolved by amicable settlement in the grievance procedure or
submitted promptly to arbitration ; or (2) the grievance or arbitration
procedures have not been fair and regular or have reached a result which is
clearly repugnant to the purposes and policies of the Act.