PETITION FOR REVIEW OF ORDER OF NATIONAL LABOR RELATIONS BOARD (Case No. 7-CA-10443).
Gibbons, Biggs and Hunter, Circuit Judges.
HUNTER, III Circuit Judge:
Section 9(a) of the National Labor Relations Act, as amended ("the Act"), 29 U.S.C. § 159(a),*fn1 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,*fn2 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.*fn3 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.*fn4
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.*fn5
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.*fn6
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.*fn7
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),*fn8 9(a),*fn9 8(a)(1) and 8(a)(5)*fn10 of the NLRA.*fn11 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.*fn12 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 ...