Office and Professional Emp. Int. U., Local 425 v. NLRB

• Decision Date: 19 March 1969
• Docket Number: No. 21550,21710.,21550
• Citation: 136 US App. DC 12,419 F.2d 314
• Parties: OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 425, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Brotherhood of Locomotive Firemen and Enginemen, Intervenor. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Office and Professional Employees International Union, Local 425, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

136 US App. DC 12, 419 F.2d 314 (1969)

OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 425, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Brotherhood of Locomotive Firemen and Enginemen, Intervenor.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Office and Professional Employees International Union, Local 425, AFL-CIO, Intervenor.

Nos. 21550, 21710.

United States Court of Appeals District of Columbia Circuit.

Argued October 25, 1968.

Decided March 19, 1969.

Mr. Joseph E. Finley, Cleveland, Ohio, with whom Mr. Melvin S. Schwarzwald, Cleveland, Ohio, was on the brief, for petitioner in No. 21,550, also entered appearances for intervenor in No. 21,710.

Mr. Leonard F. Lybarger, Cleveland, Ohio, for petitioner in No. 21,710. Mr. William J. Hickey, Washington, D. C., was on the brief for petitioner in No. 21,710 and also entered an appearance for intervenor in No. 21,550.

Mrs. Abigail Cooley Baskir, Atty., National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel and Glen M. Bendi sen, Atty., National Labor Relations Board, were on the brief, for respondent.

Before BURGER, McGOWAN and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

This case is before us on a petition to review and set aside a National Labor Relations Board (NLRB) order filed by the Employer (which in this case happens to be a union, the Brotherhood of Locomotive Firemen & Enginemen), a petition for modification filed by the Union (Office & Professional Employees International, Local 452, AFL-CIO), and a cross-petition for enforcement filed by the NLRB. Finding substantial evidence in the record supporting the findings of fact and no error in the application of law, we deny both the petitions to reverse and to modify the order, and we grant enforcement.

The Employer, Brotherhood, is a labor organization representing railroad employees throughout the United States and Canada. Its central office, the Grand Lodge, is located in Lakewood, Ohio, and it has approximately 1,200 local units whose operations are occasionally audited by The Grand Lodge. The Grand Lodge is the unit involved in this case. For several years prior to 1966, while the employees in this unit were represented by the Grand Lodge Employees Association, nearly all auditing work was done by certain chosen employees taken from within this bargaining unit. Following an election in August 1966, appellant Union was certified as the new bargaining representative for the employees of this unit.

On September 8, 1966, contract negotiations between the Employer and Union began. The Employer proposed that three classifications — Programmer, Insurance Underwriting Supervisor, and Auditors — be exempted from the bargaining unit. The final collective bargaining agreement, dated October 1, 1966, makes no mention of auditors or exemptions thereof, but provides that employees performing the work customarily done by the statistical clerks outside of the central office would receive no less than the rate of statistical clerk.

Toward the end of October, the Employer, without notifying or consulting with the Union, made plans to have the auditing work done outside the Union. It checked with employees to ascertain who would be willing to accept assignments as full-time auditors. Effective November 1, 1966, it granted two volunteer office employees of the unit a one year leave of absence from the unit and appointed them in its new (as of 1966) classification of General Organizer-Auditors, to perform audits full time. The Union protested and stated that it was invoking the grievance procedure. On November 25, the Union advised the Employer that it would like to suspend the grievance proceedings pending resolution of an unfair labor practice charge being prepared by the Union. The Employer answered on November 29 that if the Union had a grievance at all, the time for processing it had expired under the grievance procedure. The Union filed charges against the Employer on December 1.

The NLRB adopted the Trial Examiner's findings that the Employer had violated Section 8(a) (1) and (5) of the National Labor Relations Act (the Act)¹ by unilaterally changing the terms and conditions of employment without fulfilling its duty to bargain. It ordered the Employer to cease and desist from its unlawful action and to restore the status quo ante by rescinding the new classification and returning the two employees to their former classification in the unit.

The Employer seeks reversal of the Board's order on three grounds: First, the NLRB abused its discretion by asserting jurisdiction instead of deferring to the mandatory grievance procedure; Second, the merits were improperly decided by the Board; and Third, the remedy is improper. The Union seeks to extend the remedy so that the order would (1) prohibit any change of the auditing work during the term of the contract without Union agreement; and (2) require reimbursement of the Union for dues lost. We discuss these contentions in the order listed.

I. NLRB'S FAILURE TO DEFER TO ARBITRATION IS NOT ABUSE OF DISCRETION.

The Employer does not question the statutory jurisdiction of the Board over this case,² but rather asserts that under the circumstances the NLRB should have deferred to arbitration. The Employer contends that the Supreme Court's decisions in Textile Workers v. Lincoln Mills³ and the Steelworkers' Trilogy,⁴ express a philosophy which the NLRB must implement, of strengthening collective bargaining by giving full play to private adjustment machinery established by the parties, and that it is inconsistent with the statutory policy favoring arbitration for the Board to resolve disputes which, while cast as unfair practices, essentially involve a dispute as to interpretation or application of the collective bargaining agreement.⁵

The Supreme Court's decisions in Textile Workers and the Steelworkers' Trilogy do, indeed, laud the policy of respecting arbitration agreements reached by the parties. But as the Court pointed out in NLRB v. Acme Industrial Co., 385 U.S. 432, 436, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967), these earlier decisions "dealt with the relationship of courts to arbitrators. The weighing of the arbitrator's greater institutional competency, which was so vital to those decisions, must be evaluated in that context. * * The relationship of the Board to the arbitration process is of a quite different order. See Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 269-272, 84 S.Ct. 401, 11 L.Ed.2d 320" (1964).

The Board's basic jurisdiction in the premises has recently been confirmed by the Supreme Court. See NLRB v. Strong, 393 U.S. 357, 89 S.Ct. 541, 21 L.Ed.2d 546 (Jan. 15, 1969):

Admittedly, the Board has no plenary authority to administer and enforce collective bargaining contracts. Those agreements are normally enforced as agreed upon by the parties, usually through grievance and arbitration procedures, and ultimately by the courts. But the business of the Board, among other things, is to adjudicate and remedy unfair labor practices. Its authority to do so is not "affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise * * *." § 10(a), 61 Stat. 146, 29 U.S.C. § 160(a). Hence, it has been made clear that in some circumstances the authority of the Board and the law of the contract are overlapping, concurrent regimes, neither pre-empting the other. NLRB v. C & C Plywood Corp., 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967); Carey v. Westinghouse Electric Corp., 375 U.S. 261, 268, 84 S.Ct. 401, 407, 11 L.Ed.2d 320 (1964); Smith v. Evening News Ass\'n, 371 U.S. 195, 197-198, 83 S.Ct. 267, 268-269, 9 L.Ed.2d 246 (1962); Local 174, Teamsters, etc. v. Lucas Flour Co., 369 U.S. 95, 101, n. 9, 82 S.Ct. 571, 7 L.Ed.2d 593 (1961). Arbitrators and courts are still the principal sources of contract interpretation, but the Board may proscribe conduct which is an unfair labor practice even though it is also a breach of contract remediable as such by arbitration and in the courts. Smith v. Evening News Ass\'n, 371 U.S. 195, 197-198, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). It may also, if necessary to adjudicate an unfair labor practice, interpret and give effect to the terms of a collective bargaining contract. NLRB v. C & C Plywood Corp., 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967). Footnotes omitted.

In Carey v. Westinghouse Elec. Corp., 375 U.S. 261, at 271, 84 S.Ct., at 409 (1964), referred to with approval in Strong and Acme the Court quoted a then recent statement of the Board (see International Harvester Co., 138 N.L. R.B. 923, 925-926 (1962), aff'd, Ramsey v. NLRB, 327 F.2d 784 (7th Cir. 1964), cert. denied, 377 U.S. 1003, 84 S.Ct. 1938, 12 L.Ed.2d 1052 (1964):

There is no question that the Board is not precluded from adjudicating unfair labor practice charges even though they might have been the subject of an arbitration proceeding and award. Section 10(a) of the Act expressly makes this plain, and the courts have uniformly so held. However, it is equally well established that the Board has considerable discretion to respect an arbitration award and decline to exercise its authority over alleged unfair labor practices if to do so will serve the fundamental aims of the Act.

We might leave the matter there and say that since the Board has some discretion to take jurisdiction rather than to defer to arbitration, the Employer's objection to exercise of discretion cannot be based on a legal broadside, but can be supported only by some showing that the Board has shown a lack of even-handedness in its action, or has otherwise been arbitrary or capricious — a showing that has not been attempted by appellant Employer.

We have, however, explored the matter further,...