United Steelworkers of America, AFL-CIO v. N.L.R.B., AFL-CI

Citation536 F.2d 550
Decision Date18 May 1976
Docket NumberP,No. 75-1737,AFL-CI,75-1737
Parties92 L.R.R.M. (BNA) 2545, 78 Lab.Cas. P 11,429 UNITED STEELWORKERS OF AMERICA,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, The Dow Chemical Company, Intervenor.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Carl B. Frankel, William H. Schmelling, Pittsburgh, Pa., Bernard Kleiman, Chicago, Ill., Bredhoff, Cushman, Gottesman & Cohen, Washington, D. C., for petitioner.

Peter M. Bernstein, John S. Irving, Jr., Elliott Moore, Washington, D. C., for respondent.

Kenneth C. McGuiness, Robert E. Williams, Washington, D. C., Thomas W. Misner, Midland, Mich., for intervenor.

Before GIBBONS, BIGGS and HUNTER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Section 9(a) of the National Labor Relations Act, as amended ("the Act"), 29 U.S.C. § 159(a), 1 requires that a collective bargaining representative be given the opportunity to be present on any occasion when employee grievances are adjusted by the employer. This right, like others in the labor relations field, 2 may be relinquished by the employee representative in the give and take of collective bargaining, or at any time when the representative believes that such action would be in the best interest of the employees. 3 In the present case, the union did execute a limited "waiver" of its rights under § 9(a), and the employer did take action, without the presence of union representatives, which is alleged to have constituted the adjustment of grievances. The question which must be decided is whether the employer's program can be found to be within the scope of the waiver's authorization. 4

I.

For at least twenty years, Local 12075, United Steelworkers of America, AFL-CIO ("the Union"), and its predecessor have served as the duly designated and recognized collective bargaining representative of certain employees at the Midland Division (Michigan) plants of Dow Chemical Company. The relevant collective bargaining agreement was effective from March 8, 1971 to March 11, 1974.

In December, 1972 the employer instituted a program soliciting communications in the nature of questions, suggestions and complaints from employees. This program, known as "Speak Out," was begun without prior notice to, or consultation with, the union. "Speak Out," was announced by means of a booklet mailed to each employee, which set forth the procedures to be followed and the philosophy and goals of the program:

It opens up a way for any of us to speak his mind, and get an answer, when something's nagging at us but for some reason we'd rather not take it the more usual route.

I'm convinced that 'Speak Out' will be a valuable addition to our employee communications. 5

Submissions under "Speak Out" were to be made on standard forms and directed to the coordinator of "Speak Out." The communicating employee had the option of providing his or her name or preserving complete anonymity. Upon receiving a communication, the "Speak Out" coordinator might either deal with it personally or refer it to any other person(s) in management having expertise or authority in the subject matter area. In the latter case, the submitting employee's name, if shown, would be removed before transmittal. After the "Speak Out" coordinator or other designated company officer(s) had time to gather information, a reply would be composed. However, as the introductory booklet itself made clear, all replies were to be reviewed by the General Manager of the Midland Division; only after that would a reply be sent out to any employee who had signed his "Speak Out" request. In addition, selected responses deemed to be of general interest to employees were published in Brinewell, a monthly employee magazine edited and published by the company, unless the submitting employee requested that the reply not be published. 6

Without attempting to categorize the responses to all of the two hundred and eighty-four "Speak Out" submissions received between December, 1972 and November, 1973 from members of the collective bargaining unit, we can note that some merely restated and defended company policies, others merely informed that the matter had been referred to specific officers for further investigation, others suggested that the matter be brought to the Union's attention as a possible topic for future collective bargaining, and still others reflected the granting of some relief from the company action or condition complained of. 7

II.

In June, 1973 the Union filed an unfair labor practice charge with the NLRB. The gravamen of the charge was that Dow Chemical, through the "Speak Out" program, had engaged in the adjustment of grievances without permitting the Union the opportunity to be present, in violation of §§ 8(d), 8 9(a), 9 8(a)(1) and 8(a)(5) 10 of the NLRA. 11 A complaint issued, and thereafter the parties waived hearing and submitted the matter upon stipulated facts and exhibits.

The Administrative Law Judge elected to assume for the purposes of his decision that some of the matters raised in "Speak Out" submissions were grievances, within the meaning of the Act. 12 With that assumption, he proceeded to find the remaining elements necessary to bring the employer's conduct into conflict with § 9(a), including the "adjustment" of some of the matters raised through "Speak Out." However, the Administrative Law Judge declined to find an unfair labor practice, on the ground that the Union had waived its rights under § 9(a) and related sections of the Act. The finding of waiver was based on the following provision of the then-current collective bargaining agreement:

Article III, Section 3 Grievance Procedure:

A. It is the intent of this Section, to establish means for prompt adjustment of grievances at the job level with the immediate supervisor and the employee. Therefore, in order to promote better cooperation, understanding, and labor relations between employees, Union Representatives, and the Company, it is agreed that an employee with a complaint or request, must first state his complaint or request to his immediate supervisor, and will give that supervisor a reasonable opportunity to adjust the problem before resorting to grievance procedure. The employee may have a steward present at this meeting, but the employee must state his own complaint.

B. If the complaint is not satisfactorily adjusted by the provisions of Paragraph A, then the grievance procedure outlined below shall be followed. . . .

(Appendix, p. 45a).

There follows a description of a multi-step grievance mechanism (ending with possible arbitration), with each successive step involving progressively higher levels of company management. The Administrative Law Judge's crucial determination was that, assuming that grievances had been adjusted in the "Speak Out" program, this involved no variance "of any material significance" (Opinion, p. 875a) from the procedure which the Union had authorized in Section 3A of the collective bargaining agreement.

In December, 1974, a panel of the NLRB adopted without opinion the recommended order of the Administrative Law Judge, and ordered the complaint dismissed (215 NLRB No. 139). One member dissented, taking the position that there were indeed "material difference(s)" (dissenting opinion, p. 886a) between the "Speak Out" procedure and the procedure envisioned by the collective bargaining agreement, and that as a result the former could not be found to be authorized by union consent. From the order of the Board majority the Union petitions this court for review. Dow Chemical Company has intervened. 13

III.

At the outset we are faced with the question of the proper standard of review. As noted, the parties have stipulated the historical facts; 14 in our view the disposition here must depend upon the correctness of the determination that there is no material difference between the contractual procedure and the "Speak Out" procedure. While this might be deemed a question of ultimate fact, or a mixed question of law and fact, we recognize that its resolution is entitled to some deference because the subject matter is within the Board's area of special expertise. Nevertheless, we are convinced that the view of the dissenting Board member must prevail.

We start from the principle that a waiver of a statutory right must be clearly and unmistakably established, and that express language will not be read expansively. Radio Television Technical School, Inc. v. NLRB, 488 F.2d 457 (3d Cir. 1973); Texaco, Inc. v. NLRB, 462 F.2d 812 (3d Cir. 1972). From this viewpoint we have little difficulty in defining the scope of the union's waiver. The Union and the Company evidently agreed that an employee would be required initially to state his grievance to his immediate supervisor in a face-to-face meeting. 15 If the supervisor was able to satisfy the employee, no further action would be necessary; if not, the formal grievance mechanism would then be available. The parties to the collective bargaining agreement could well have believed that a provision such as Section 3A would be useful in minimizing unwarranted resort to the grievance mechanism by "weeding out" those complaints resulting from simple misunderstanding or oversight, as well as those so trivial that the employee would be unwilling to make an initial statement of his own case to his immediate superior.

The more difficult task is the assessment of the differences between the two programs. In undertaking this task, the Administrative Law Judge focused exclusively on asserted disparities in the degree of involvement of middle and upper management. Certainly there would seem to be differences in this regard, since the Section 3A procedure speaks only of resort to the employee's immediate supervisor, while "Speak Out" guarantees that at least one middle-management figure (the "Speak Out" coordinator) 16 and one top-management figure (the General Manager)...

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