Operations In Fiscal Year 1988 - National Labor Relations Board

92 Fffty-Third Annual Report of the National Labor Relations Boardspondent to process the layoff grievances through the contractualprocedure. It did not, however, order the respondent to arbitratethe grievances, as it found that they did not involve aright "worked for or accumulated over time" and, hence, did notarise under the expired contract within the meaning of Nolde,supra.Chairman Dotson dissented from the majority finding that therespondent. violated Section 8(a)(5) by repudiating the arbitrationprocedure and by refusing to bargain over the effects of the conversiondecision. First, he found insufficient evidence of repudiationof the postexpiration duty to arbitrate and, in keeping withhis partial dissent in Indiana & Michigan Electric, supra, he wouldhave held that the respondent in this case had no postexpirationduty to process the grievances as they did not "arise under" theexpired contract.Secondly, Chairman Dotson disagreed that the layoff decisionwas an effect of the conversion decision. He viewed the layoff asthe "natural and logical" outcome of the conversion and not subjectto effects bargaining. Even assuming that the two decisionswere separable, Chairman Dotson reasoned, under Otis ElevatorCo." the layoff decision was a nonmandatory subject of bargainingas it was not motivated by a desire to reduce labor costs, andhence the respondent was not required to bargain over it.In Uppco, Inc.," the Board adopted the administrative lawjudge's decision that the employer violated Section 8(a)(5) and(1) by refusing to arbitrate two grievances arising out of eventsoccurring after the expiration of a collective-bargaining agreement.After the parties' collective-bargaining agreement expired, employeeswent on strike. The strike ended and the employer recalledemployees on a departmental basis despite the union's requestthat employees be recalled according to plantwide seniority.The expired contract contained detailed provisions regardingseniority and provided for a grievance procedure culminating inbinding arbitration. The union, relying on provisions in the expiredcontract, grieved the failure to recall employees byplantwide seniority and the employer's refusal to pay holiday payfor Christmas and New Year's to those employees who had notbeen recalled on those days. The employer denied both grievancesand refused to arbitrate.The panel majority of Members Johansen and Babson foundthe parties' agreement did not negate the presumption that theagreement to arbitrate disputes arising under the contract continuedafter expiration of the contract. 93 Thus, the majority reasoned,under Indiana & Michigan Electric Co.,94 the parties must91 269 NLRB 891 (1984)." 288 NLRB No. 98 (Members Johansen and Babson; Member Cracraft dissenting).93 See Nolde Bras. v. Bakery Workers Local 358, 430 U.S. 243 (1977)." 284 NLRB No. 7 (May 29, 1987).