536 F.

2d 550
92 L.R.R.M. (BNA) 2545, 78 Lab.Cas. P 11,429

UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
The Dow Chemical Company, Intervenor.
No. 75-1737.

United States Court of Appeals,

Third Circuit.
Argued April 5, 1976.
Decided May 18, 1976.

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.
2

For at least twenty years, Local 12075, United Steelworkers of America, AFLCIO ("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:

4 opens up a way for any of us to speak his mind, and get an answer, when
It
something's nagging at us but for some reason we'd rather not take it the more usual
route.
5 convinced that 'Speak Out' will be a valuable addition to our employee
I'm
communications.5
6

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
7

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.
8

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:

10
11 It is the intent of this Section, to establish means for prompt adjustment of
A.
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.
12 If the complaint is not satisfactorily adjusted by the provisions of Paragraph A,
B.
then the grievance procedure outlined below shall be followed. . . .
13

(Appendix, p. 45a).

14

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.

15

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.13III.

16

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.

17

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-toface 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.
18

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 middlemanagement figure (the "Speak Out" coordinator)16 and one top-management
figure (the General Manager)17 would see and consider the complaint. The
Administrative Law Judge discounted this factor; he stated that, "in practice,
'Speak Out' complaints appear to be referred by the coordinator to the
supervision involved." However, this observation is not supported by any
reference to the record, and we have been unable to find any evidence that any
"Speak Out" submission, let alone all of them, was in fact referred to the
immediate supervisor.

19

In this court, the Board makes a similarly unpersuasive attempt to minimize the
difference in the higher management input factor. The Board argues that
Section 3A also permits the immediate supervisor to consult with his superiors
before responding to the employee. Certainly there is nothing in Section 3A
which expressly precludes this, but there is also no indication in the record as to
the extent, if any, to which this consultation actually occurs.

20

We are thus unable to agree that this factor may be disregarded. The Board has
demonstrated that the two procedures might theoretically operate in the same
way in a particular case; however, in the absence of evidence as to how the
systems actually work, it is at least equally plausible to theorize that immediate
supervisors will never pass Section 3A complaints on to higher officials, and
that the "Speak Out" coordinator will never rely on a solution offered by the
immediate supervisor. Where the employer seeks to rely on a waiver to justify
conduct otherwise prohibited by the Act, we believe that he must provide more

than a theory of possible congruence between authorized and actual conduct.

21

There are other differences between the procedures, not dealt with in the
Administrative Law Judge's opinion, which we believe require consideration.

22

One is the question of timing. The contractual resort to the immediate

supervisor must take place before the grievance procedure begins. The "Speak
Out" mechanism would be available to an employee before, during or after
institution of a formal grievance; there is no indication that the employer has
provided safeguards against parallel adjustments of the same grievance under
the contract and under "Speak Out." This makes it considerably more difficult
to argue that "Speak Out" is no more than a substitute for and the equivalent of
the pre-grievance "complaint" of Section 3A.18

23

Another distinguishing factor is the degree to which anonymity may be

preserved. Whether or not Section 3A contemplates a face-to-face
confrontation,19 the contractual remedy rather clearly contemplates that the
complaining employee's identity will be known to the immediate supervisor,
and there is no reason to believe that it would be concealed from any other
officials whom the supervisor might contact. "Speak Out," on the other hand,
automatically conceals the employee's identity from all management personnel
except the program co-ordinator, and permits the employee to proceed in
complete anonymity.

24

We also believe that the publication of selected "Speak Out" inquiries and
replies in the company magazine is of significance. Once again, there may be
nothing in Section 3A to make it clear that the employer could not similarly
report the results of pre-grievance complaints presented to immediate
supervisors, but there is nothing in the record to indicate that this had ever been
done, and we would not intuitively think such a practice likely.

25

We believe that the foregoing differences in actual or likely operation between

the "Speak Out" system and the pre-grievance provision of Section 3A, when
considered together, are sufficiently "material" that a consent to the latter
cannot be said to authorize the former.20 In so holding, we would emphasize
three potential effects on the Union's role as collective bargaining agent,
flowing from the operative differences. First, as noted, the "Speak Out"
procedure may increase the likelihood that a particular grievance issue will be
considered and decided by middle and upper management before the Union's
position is heard, or before the Union even has notice of the dispute. The
parties have presented arguments in this court as to whether or not such

decisions would be binding precedent in later grievance proceedings and

arbitrations as the "common law of the contract." We do not find it necessary to
decide that question, since we believe that at the very least the "ex parte"
decision would have some practical and psychological effect were management
personnel called upon to take a position on the sale issue in a subsequent
grievance hearing. The Union can properly complain of being forced to argue
that a position of the employer, previously expressed in a "Speak Out" reply
and thereby concurred in by the highest officer involved in the grievance
procedure, should be disregarded in a grievance hearing.
26

Secondly, "Speak Out" replies may well take on greater impact, as compared to
a response from an immediate supervisor, in determining whether the
complaining employee will follow through with a formal grievance and
whether other employees will pursue similar claims. Once again, one reason is
that the "Speak Out" reply is more likely to rely expressly on the views of
someone in upper management; furthermore, it carries the approval of the
General Manager of the Division. Where the employer chooses to publish a
reply in the Brinewell, the impact will be broadened as well as deepened. Even
if a potential grievant understands that an unfavorable reply states only the
employer's position as to rights and duties under the contract, and that the
ultimate determination may be made by an arbitrator or a court, he may still be
deterred by the advance knowledge that he is likely to meet opposition at all
stages of the grievance process.

27

Finally, the "Speak Out" system offers flexibilities of time and source of relief
which not only are not contemplated by Section 3A, but could further reduce
the Union's ability to plan the processing of grievances in an orderly and
internally consistent manner. Especially where a particular dispute may affect a
number of employees, the Union retains a legitimate interest, limited only by
the first proviso of 9(a) of the Act once the contractual grievance procedure is
begun, in following a grievance to a definitive determination without
unpredictable diversions of the type possible under "Speak Out."

IV.
28

We believe that our conclusion that "Speak Out" was not authorized by Section
3A of the collective bargaining agreement is fully consistent with the
Company's initial approach to "Speak Out." The introductory brochure seems to
anticipate that the new system would function to transmit information and state
complaints, but not to resolve them. There is no direct reference in the brochure
to Section 3A, any other part of the collective bargaining agreement, the Union,
or the formal grievance procedure.21 Furthermore, the Company did not

originally argue "waiver" under Section 3A before the Administrative Law

Judge; its principal position22 was that the system had not been used for the
adjustment of grievances within the meaning of the Act.
29

In any case, we have no occasion to disturb the Administrative Law Judge's

finding that the employer did not implement the "Speak Out" program with any
actual intent to undermine the grievance procedure, or any other aspect of
protected union activity.

30

The Company endeavored to show that not only was there no intent to avoid its
duty to deal with the Union, there was no such result. We do not question the
figures purporting to demonstrate that grievance activity did not decline after
"Speak Out" began. (Appendix, pp. 859-61a). However, this demonstration
alone is of very little probative value in assessing the materiality of the
differences between the pre-existing contractual procedure and "Speak Out."
Many other factors might affect the filing of grievances, and the record does not
indicate whether any changes took place in the type of grievance filed or the
Union's rate of success. To the extent that the grievance data is put forward as
an argument that "Speak Out," though perhaps not justified by the Union's
waiver in Section 3A of the collective bargaining agreement, should be
permitted to continue because it has done no harm to the Union, the argument
must be rejected. When Congress, acting within constitutional limits,
determines that possible adverse consequences justify the prohibition of certain
conduct, a finding that such consequences have occurred or are likely to occur
in a particular situation is not necessary to a conclusion that the statutory
prohibition has been violated.

31

This general principle applies with particular force in the present case, since the
Congressional enactment is aimed at a specific type of situation and is based on
articulated concerns. That 9(a) represents a delicate and hotly contested
balance between competing policy interests is amply demonstrated by the
legislative history. On the one hand, Congress wished to preserve for the
employee and the employer some flexibility in dealing with individual
problems where the intervention of the union might be unnecessary or
counterproductive. On the other hand, Congress recognized that the employer
could abuse this flexibility by 1) discriminating between employees on the basis
of their support or non-support of the union, 2) taking inconsistent positions
with respect to similar claims pressed by different employees, thereby
obscuring rights under the collective bargaining agreement, and 3) attempting to
create the impression among employees that a "better deal" could be had by not
resorting to the union's representation or mechanisms.23 There is nothing in the
record to demonstrate that "Speak Out" could not be subject to such abuses.

32

The Administrative Law Judge in his opinion, and the Board and employer in
this court, have expressed the belief that programs like "Speak Out" constitute
an innovation beneficial to the Union and employees as well as the employer in
promoting efficiency, harmony and understanding.24 Presumably the
suggestion is that if we agree, we should refrain from finding that the employer
has violated the Act. We must reject this appeal as directed to the wrong forum.
Congress has spoken specifically and after due deliberation; neither the Board
nor this court has any authority to engraft onto the statutory provision an
exception or exemption based on a re-evaluation of policy factors.25

33

Furthermore, we do not view today's decision as foreclosing the

implementation of programs having the virtues claimed for "Speak Out."26
Aside from the possibility of Congressional reconsideration of 9(a), there are
at least two options available. First, the parties could negotiate a new "waiver"
section of the collective bargaining agreement which, unlike Section 3A, would
be broad enough in scope to cover the "Speak Out" program as currently
constituted. If the program does indeed offer advantages to all concerned, the
negotiation task should not be impossible, at least if appropriate safeguards can
be supplied. Furthermore, if, as suggested earlier, the Company originally
conceived of "Speak Out" as dealing only with non-grievance ("informational")
matters, it should be feasible to achieve this more limited purpose by
preliminarily screening out those "Speak Out" submissions considered to raise
grievances, within the meaning of the Act. There could then be no problem
under 9(a).

V.
34

The preceding sections have treated the petition for review under the
assumption that some of the matters adjusted through "Speak Out" were
"grievances," within the meaning of the Act. While counsel for the Board all
but conceded at oral argument that this was in fact the case, we agree with
petitioner27 that since the Board made no findings on this point, the proper
course is to remand to the Board for that determination.

35

For the foregoing reasons, the petition for review is granted, the order of the
National Labor Relations Board dismissing the complaint is vacated, and the
case is remanded to the Board for further proceedings consistent with this
opinion.

29 U.S.C. 159:

(a) Representatives designated or selected for the purposes of collective

bargaining by the majority of the employees in a unit appropriate for such
purposes, shall be the exclusive representatives of all the employees in such
unit for the purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employment: Provided, That any
individual employee or a group of employees shall have the right at any time to
present grievances to their employer and to have such grievances adjusted,
without the intervention of the bargaining representative, as long as the
adjustment is not inconsistent with the terms of a collective-bargaining contract
or agreement then in effect: Provided further, That the bargaining
representative has been given opportunity to be present at such adjustment.
2

E. e., the right to strike for economic benefits, Mastro Plastics v. NLRB, 350
U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956); the right of access to relevant
wage information, Timken Roller Bearing Co. v. NLRB, 325 F.2d 746 (6th Cir.
1963), cert. denied, 376 U.S. 971, 84 S.Ct. 1135, 12 L.Ed.2d 85 (1964)

In Hughes Tool Co. v. NLRB, 147 F.2d 69 (5th Cir. 1945), the court dealt with
a prior version of 9(a) which did not expressly guarantee the Union's right to
be present at the adjustment of grievances. Nevertheless, the court found that
such a right existed, and stated that it could be waived. The court included
provision for such waiver in its proposed modification of the Board's order. In
Bethlehem Steel Co., 89 NLRB 341 (1950), enforcement denied on other
grounds sub nom. Bethlehem Steel Co. v. NLRB, 191 F.2d 340 (D.C.Cir.
1951), the Board held that the employer could not insist upon such a waiver as
a condition to a collective bargaining agreement, finding the Hughes Tool
"dictum" distinguishable on the ground that the latter case involved a voluntary
waiver
All parties here agree that the Union's right to be present at the adjustment of
grievances may be waived, and in view of our disposition of this petition we
have no occasion to question Hughes Tool.

The employer, Dow Chemical Company, contended before the Administrative

Law Judge that the charge which instituted this proceeding was not timely filed.
This question was resolved against the employer, see opinion at Appendix, p.
871, and has not been raised in this court

Appendix, p. 84. The entire brochure is set out at pp. 83a-90a

In the case of an anonymous "Speak Out" submission, publication in Brinewell

would be the only way in which a response could be communicated to the
employee

The 284 "Speak Out" submissions and responses (some incomplete) are set
forth in the Appendix at pp. 270a-858a. Petitioner has set forth in its brief (pp.
21-29) some examples which it contends involve the "application of wages,
hours and working conditions to individual employees." In some of these
examples "adjustments" do appear to have been made, as the Administrative
Law Judge recognized

8(d), 29 U.S.C. 158(d):

For the purposes of this section, to bargain collectively is the performance of
the mutual obligation of the employer and the representative of the employees
to meet at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or the negotiation of an
agreement, or any question arising thereunder, and the execution of a written
contract incorporating any agreement reached if requested by either party, but
such obligation does not compel either party to agree to a proposal or require
the making of a concession: Provided, That where there is in effect a collectivebargaining contract covering employees in an industry affecting commerce, the
duty to bargain collectively shall also mean that no party to such contract shall
terminate or modify such contract, unless the party desiring such termination or
modification
(1) serves a written notice upon the other party to the contract of the proposed
termination or modification sixty days prior to the expiration date thereof, or in
the event such contract contains no expiration date, sixty days prior to the time
it is proposed to make such termination or modification;
(2) offers to meet and confer with the other party for the purpose of negotiating
a new contract or a contract containing the proposed modifications;
(3) notifies the Federal Mediation and Conciliation Service within thirty days
after such notice of the existence of a dispute, and simultaneously therewith
notifies any State or Territorial agency established to mediate and conciliate
disputes within the State or Territory where the dispute occurred, provided no
agreement has been reached by that time; and
(4) continues in full force and effect, without resorting to strike or lock-out, all
the terms and conditions of the existing contract for a period of sixty days after
such notice is given or until the expiration date of such contract, whichever
occurs later:
The duties imposed upon employers, employees, and labor organizations by
paragraphs (2)-(4) of this subsection shall become inapplicable upon an
intervening certification of the Board, under which the labor organization or

individual, which is a party to the contract, has been superseded as or ceased to

be the representative of the employees subject to the provisions of section
159(a) of this title, and the duties so imposed shall not be construed as requiring
either party to discuss or agree to any modification of the terms and conditions
contained in a contract for a fixed period, if such modification is to become
effective before such terms and conditions can be reopened under the
provisions of the contract. Any employee who engages in a strike within the
sixty-day period specified in this subsection shall lose his status as an employee
of the employer engaged in the particular labor dispute, for the purposes of
sections 158 to 160 of this title, but such loss of status for such employee shall
terminate if and when he is reemployed by such employer.
9

See n. 1, supra

10

8(a)(1), 8(a)(5), 29 U.S.C. 158(a)(1), 158(a)(5):

(a) It shall be an unfair labor practice for an employer
(1) to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 157 of this title;
(5) to refuse to bargain collectively with the representatives of his employees,
subject to the provisions of section 159(a) of this title.

11

The theory relating the several statutory provisions, as set forth by the
Administrative Law Judge (pp. 871-72a), is as follows. If the Company has
solicited and adjusted grievances without permitting the Union to be present in
violation of 9(a), this action and the unilateral establishment of "Speak Out"
constituted a modification of the collective bargaining agreement without
compliance with the terms of 8(d). This in turn constitutes a breach of the
duty to bargain collectively, which is made an unfair labor practice by 8(a)
(5). A violation of the more general 8(a)(1) is derived from the 8(a)(5)
violation
We do not read the Board or the employer as contesting this analysis of the
consequences of a finding that the Union's 9(a) rights have been violated.

12

The definition of "grievance" has been considered in a number of cases. See, e.

g., Elgin, J. & E. R. Ry. Co. v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed.
1886 (1945) (Railway Labor Act); Douds v. Local 1250, Retail Wholesale
Dept. Store Union of America, CIO, 173 F.2d 764 (2d Cir. 1949); Hughes Tool
Co. v. NLRB, supra; Toledo Local 15-P Lithographers, 175 NLRB 1072 (1969)

13

The Company filed a brief in this court and participated in oral argument

14

There are, in other words, no disputes as to the weighing of conflicting

evidence. However, as will be seen, certain facts which might be deemed
relevant were not included in the stipulation

15

The Board and the company dispute the Union's position that Section 3A
necessarily contemplates an in-person confrontation, as opposed, presumably,
to a written presentation. However, we are unable to attribute any other
meaning to the provision that "(t)he employee may have a steward present at
this meeting . . . ." (Emphasis added). At any rate, we do not consider the
resolution of this dispute crucial

16

We base the characterization of the coordinator as a middle management figure

both on the nature of his "Speak Out" work and on the emphasis given in the
introductory brochure to the incumbent's past company experience. (See p. 89a)

17

The General Manager "carries full responsibility for the Midland Division,"
(Brochure at p. 87a), and was the management representative at the final step in
the grievance procedure. (p. 46a)

18

The stipulated record indicates that some employees invoked the "Speak Out"
mechanism after failing to obtain satisfaction from a Section 3A presentation.
The "case" set forth at Appendix pp. 618-19a seems to be one instance in which
the "Speak Out" mechanism was invoked in regard to a dispute pending before
a grievance committee

19

See n. 15, supra

20

The Administrative Law Judge cited Westinghouse Electric Corp. v. NLRB,

325 F.2d 126 (7th Cir. 1963), in recommending that the complaint be
dismissed. We do not believe that this case supports the decision of the Board
or is contrary to our decision here. First of all we note that Westinghouse did
not involve any question of waiver of 9(a) rights. In addition, we believe that
the result there rests firmly on the observation that
there is no evidence in the record that . . . any change occurred in the
processing or handling of grievances or that any grievance was adjusted without
a Union representative being given the opportunity to be present.
325 F.2d at 128.
We have not found any of the other cases cited by the parties particularly useful
in deciding the ultimate question.
As we have said in the context of the right to strike,

Whether a particular collective bargaining agreement includes a waiver of the

employees' right . . ., and the extent of any such waiver, 'turns upon the proper
interpretation of the contract . . . (which) must be read as a whole in the light of
the law relating to it when made'. Mastro Plastics Corp. v. NLRB, (350 U.S.
270, 279, 76 S.Ct. 349, 100 L.Ed. 309 (1956)).
Food Fair Stores, Inc. v. NLRB, 491 F.2d 388, 395 (3d Cir. 1974).
21

The brochure does describe "Speak Out" as a "supplement," and as "one more
channel." However, the context suggests that "Speak Out" was conceived of as
a "supplement" to existing "channels" of communication, and not as an
additional mode of dispute resolution. Thus the General Manager, in his
introductory remarks in the brochure, stated his confidence that " 'Speak Out'
will be a valuable addition to our employee communications." See pp. 84a-85a
The Administrative Law Judge's assumption that grievances were adjusted
would then constitute an assumption that "Speak Out" operated beyond its
contemplated scope.

22

See n. 4, supra

23

The legislative history of the 1947 amendment to 9(a), portions of which are
set out in the Brief for Petitioner at pp. 33-35, reflects these concerns and
indicates that the resulting two-proviso structure of 9(a) represents a
compromise
The House version of the amendment to 9(a) confirmed the right of
individual employees to present grievances and have them adjusted without the
intervention of the Union, but did not contain the second proviso guaranteeing
the Union the right to be present at the adjustment of grievances. Congressman
Lanham objected:
To grant individual employees or minority groups of employees the right to
present and settle grievances . . . without permitting the representative of the
majority of the employees to participate in the conference and join in any
adjustment is to undermine the very foundations of the act. To create rivalry,
dissension, suspicion and friction among employees, to permit employers to
play off one group of employees against another, to confuse the employees
would completely undermine the collective-bargaining representative. . . .

93

Cong.Rec. 3702 (1947)

Senator Murray felt that 9(a), at least without the second proviso,

makes available to employers a means of undermining the status of the duly

chosen bargaining representative by dealing directly with individual employees
in the settlement of their grievances and by giving favored treatment to nonunion employees.
93

Cong.Rec. 6663 (1947)

The Senate added the second proviso, and the Senate version prevailed in
conference.

24

At oral argument, counsel for the employer suggested that some such flexibility
is not only beneficial but necessary, because strict compliance with 9(a) is
simply unworkable in a large industrial plant

25

In Bethlehem Steel, supra n. 3, the Board was faced with similar policy
arguments for the proposition that an employer may insist on a waiver of 9(a)
rights as a condition to a collective bargaining agreement. Rejecting these
arguments, the Board said
However, apart from the fact that it is questionable whether the dire results
predicted by the (employer) necessarily follow from the recognition of the
Union's right to attend grievance adjustments by foremen, it is clear that the
explicit language of the Act is the best evidence of what Congress believed
would effectuate its purposes. Section 9(a) secures to the bargaining
representative the right to attend the adjustment of grievances without
qualification and it is not within our province to restrict it. Moreover . . .
legislative history and the entire statutory bargaining scheme disclose that the
second proviso to Section 9(a) was inserted at least in recognition of the
bargaining representative's interest in administering its contract.

89

NLRB at 346-47 (footnotes omitted)

26

On the contrary, it might well be that an expansive reading of Section 3A by

this court would operate to discourage unions from executing any such waiver
provision, for fear that it would be read to authorize forms of employer action
not contemplated. The result would then be to impede such "innovation" as may
be desirable

27

Brief for Petitioner at p. 31, n. 26