Pate Manufacturing Co., 793 (1972)

PATE MANUFACTURING COMPANY

Pate Manufacturing Company and George Berek and Local Union No. 73, Sheet Metal Workers International Association, Party to the Contract. Case 13-CA-10834

June 20, 1972 DECISION AND ORDER

BY CHAIRMAN MILLER AND MEMBERS

FANNING AND JENKINS

On February 23, 1972, Trial Examiner William Feldesman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief and the General Counsel filed a brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order.2 ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Respondent, Pate Manufacturing Company,

Broadview, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order.

i The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings.

2 In the absence of exceptions we adopt, pro forma, the Trial Examiner's dismissal of Respondent's motion to dismiss the complaint on the basis of the decision in Collyer Insulated Wire, A Gulf and Western Systems Co, 192

NLRB No 150

TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE

WILLIAM FELDESMAN, Trial Examiner: This case, initiati By agreement of the parties the deposition before trial of Julio Mendoza was taken under oath before a notary public on December 13, 1971, shortly before he left this country for Peru Offered by the General Counsel into evidence at the hearing, the deposition was admitted, without objection, although the Respondent did not necessarily concede the truth of all Mendoza's testimony 2 The Respondent appended to its brief certain documents , designated as Resp. Exh A, which were not offered or received in evidence at the hearing.

197 NLRB No. 126

793 ed by the filing of a charge by George Berek on August 23, 1971, was tried before me in Chicago, Illinois, on January 3 and 4, 1972, upon a complaint issued by the General Counsel on December 29, 1971, against Pate Manufacturing Company, Broadview, Illinois, herein called the Respondent, and naming Local Union No. 73, Sheet Metal Workers International Association, herein called the Union, as 'Party to Contract.' The Respondent on December 13, 1971, filed an answer containing an affirmative defense. As amended at the hearing, the complaint alleges that by discriminatorily discharging George Berek and Jesse Eaton because they 'engaged in Union and/or protected concerted activity,' and by conditioning the reinstatement of Eaton on his withdrawal of his charge, the Respondent committed unfair labor practices in violation of Section 8(a)(3), (4), and (1) of the National Labor Relations Act. The Respondent denies the commission of any unfair labor practices, asserting that the discharges of Berek and Eaton were for cause, and that withdrawal of the charge by the latter was not made a precondition to his reinstatement. By its affirmative defense and by separate motion the Respondent seeks at the threshold of this proceeding to have the Board decline jurisdiction and dismiss the complaint because of grievance-arbitration provisions in its contract with the Union.

These are the broad issues that have been presented in the case.

Upon the entire record, after seeing and hearing the witnesses and observing their demeanor on the stand,' and after due consideration of the briefs filed by the General Counsel and the Respondent,2 I make the following:

FINDINGS OF FACT

  1. THE BUSINESS OF THE RESPONDENT The Respondent admits, as the complaint alleges, that it is and at all material times has been an Illinois corporation engaged in that State in manufacturing steel fabricated products used in the installation of air-conditioning equipment; and that during the calendar year 1971 in the course of its manufacturing operations it received gross revenue and earnings in excess of $500,000, and gross earnings in excess of $50,000 from the sale of products shipped directly to States outside Illinois. I find upon the foregoing, as the Respondent further admits in accordance with the complaint, that the Respondent is and at all material times has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

    1. THE LABOR ORGANIZATION INVOLVED I find on the evidence, and in conformance with allegations of the complaint which the Respondent does not deny, that the Union is and at all material times has The General Counsel moved to have me strike and disregard the Exhibit.

      Thereafter, the Respondent filed a reply . The motion is granted. Contrary to the fears expressed- by the Respondent in its reply, I have drawn no adverse mferences from its failure to produce the documents at the hearing.

      The Respondent also submitted proposed findings of fact and conclusions of law. To the extent they are adopted in this Decision, they are approved; in all other respects they are rejected.

      been a labor organization within the meaning of Section 2(5) of the Act.

    2. THE THRESHOLD ISSUE OF 'DEFERRAL TO ARBITRATION' As already noted, the Respondent moved that the Board decline jurisdiction and dismiss the complaint, pointing to the grievance-arbitration provisions of its collective-bargaining agreement with the Union and citing as principal authority for its position the Board's recent decision in Collyer Insulated Wire Co., 192 NLRB No. 150 (1971). It contends that the Board in its discretion should step aside and eschew jurisdiction-that the grievance-arbitration provisions of the contract should be considered by the Board as the sole method of seeking relief and as providing the sole forum in which relief might be sought. Apparently to strengthen his opposition to the motion, the General Counsel moved to strike from the answer the affirmative defense which parallels and is elaborated on by the Respondent's motion. Ruling on both motions was reserved. The Respondent's motion is denied for reasons which follow: ruling on the General Counsel's motion is academic and unnecessary.

      In this case the Respondent is accused of violating the Act by discharging employees Berek and Eaton for their union or protected concerted activity, and by imposing as a condition to the reinstatement of Eaton his withdrawal of the charge. (The charge, signed and filed by Berek, alleges statutory violations in regard to both himself and Eaton.) The Union did not participate in the hearing, nor was an appearance entered on its behalf. (At the close of the General Counsel's case, he withdrew from the complaint for lack of evidence averments that the Respondent violated the Act through an illegal arrangement with the Union. Thus, the ostensible basis for his naming of the Union in the title of the complaint as 'Party to Contract' was removed.) Insofar as the discharges of Berek and Eaton are concerned, the evidence shows that for all practical purposes there may have been compliance with step 1 of the contractual grievance procedure and the need to satisfy step 2 may have also been obviated. But the Respondent asserts that no formal grievance was ever submitted under the contract on behalf of either employee, and it is clear that step 3 was never taken as provided in the agreement .3

      There has been no arbitration award, no recourse to arbitration, which may be invoked by 'either party'-the Respondent or the Union-if the grievance has not been 'satisfactorily settled' by the 'Joint-Company-Union Disputes Board' at step 3. Very short time limits required to be met at each prescribed stage of the grievancearbitration procedure, including arbitration itself, long ago expired? The Respondent made it quite plain on the record that there was a fatal failure to invoke all the steps of the grievance procedure, that is not now offering to arbitrate, and that it would interpose its procedural defenses if arbitration were sought by another. There is no 3 The matter of the alleged conditional reinstatement of Eaton was never made the subject of a grievance or complaint under the contract 4 But by 'mutual consent of both parties,' the Union and the Respondent, after they have both waived steps I and 2, 'any grievance question that the Respondent takes the position that arbitration is debarred. Apart from the grievance-arbitration provisions of the agreement and a clause prohibiting the Respondent from discharging any employee 'except for proper cause,' or from otherwise discriminating 'against any employees,' all of which furnish the Respondent with grounds to make the 'deferral to arbitration' argument, the contract has absolutely no bearing on the issues in this unfair labor practice case. Their resolution by the Board on the merits in no way depends on the interpretation of any wording of the agreement. The Board is simply not called on to resort to the contract to determine if the discharges of the two employees and the circumstances of the reinstatement of one violated the Act.

      Collyer was a very different case, involving an unfair labor practice charge by the union-party to a collective agreement against the employer-party to the contract,...

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