345 NLRB 1080
ACS, LLC
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 87
1080
ACS, LLC and United Food and Commercial Work-
ers International Union, Local 1096.1 Case 28–
CA–19291
September 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On June 6, 2005, Administrative Law Judge Thomas
M. Patton issued the attached decision. The Charging
Party filed a “Supplement to Exceptions and Brief in
Support Thereof.”2 The Respondent filed an answering
brief.
The National Labor Relations Board has considered
the decision and the record in light of the supplemental
exceptions and briefs3 and has decided to affirm the
judge’s rulings, findings, and conclusions as discussed
below, and to adopt the recommended Order.
The judge found that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by refusing to arbitrate
1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO effective July 29, 2005.
2 On June 27, 2005, the Charging Party filed exceptions to the
judge’s decision, stating that it “joins in the Exceptions to be filed by
Counsel for the General Counsel.” Subsequently, the General Counsel
decided not to file exceptions, and on July 19, 2005, the Charging Party
filed a “Supplement to Exceptions to Decision and Brief in Support
Thereof.” On August 23, 2005, the Board issued an order granting the
Respondent’s motion to strike the Charging Party’s June 27 exceptions
on the ground that they did not meet the requirements of Sec. 102.46(b)
and (c) of the Board’s Rules and Regulations. The Board also denied
the Respondent’s motion to strike the Charging Party’s July 19 Sup-
plement to Exceptions, finding that it was in substantial compliance
with Sec. 102.46. The Board deferred ruling until the decision on the
merits on the Respondent’s additional contention that the Charging
Party raised arguments in the supplement that had not been raised be-
fore the judge. In light of our decision on the merits, we find it unnec-
essary to pass on the Respondent’s contention.
3 Although the Charging Party stated generally in its supplemental
exceptions that it took exception “to the conclusions of law and the
Order in its entirety,” the only substantive portion of the judge’s deci-
sion to which it specifically excepted and about which it supplied any
argument was sec. III,B,2,b entitled “Analysis of Refusals to Arbitrate.”
In light of the Charging Party’s failure to specify any other areas of
disagreement with the judge’s decision, we consider the Charging
Party’s general exception to be waived as to all other portions of the
judge’s decision. See Sec. 102.46(b)(2) of the Board’s Rules (“Any
exception . . . not specifically urged shall be deemed to have been
waived.”). Accordingly, although the Charging Party has filed excep-
tions to the judge’s legal analysis concerning the alleged unlawful
refusals to arbitrate, there are no valid exceptions to the findings in sec.
III,B,2,a,1–7 of the judge’s decision dealing with the facts relating to
those allegations.
We further find that no valid exceptions were filed to the judge’s
disposition of the posthearing motions (sec. I) or to the judge’s dis-
missal of the allegation that the Respondent violated Sec. 8(a)(5) and
(1) by requiring seasonal workers to submit to drug testing under the
negotiated drug policy (sec. III,B,1).
a number of the Union’s grievances. For the following
reasons, we agree with the judge that the Respondent did
not violate the Act.
Facts
The parties’ collective-bargaining agreement (CBA)
has a no-strike, no-lockout provision and requires that all
disputes and grievances be resolved under the grievance
procedure in the agreement. The CBA includes a two-
step formal grievance procedure prior to either arbitration
or judicial enforcement. The CBA provides:
ARTICLE IV–GRIEVANCE PROCEDURE
3. If the grievance is not resolved at the confer-
ence as provided for In STEP TWO above, then ei-
ther party may request, in writing, within fifteen (15)
days of the conference that the matter proceed in ac-
cordance with ARTICLE V. Failure of either party
to give such written notice shall waive the rights to
proceed in accordance with ARTICLE V.
ARTICLE V–ARBITRATION
1. Disputes concerning contract interpretation,
the disposition of assets, the right of sale, the right to
control the number of hours that the plant be open or
closed down either for lack of business or for eco-
nomic reasons, or matters which involve manage-
ment decision or business judgment shall not be sub-
ject to arbitration. Procedural questions of compli-
ance with the contract shall be subject to judicial de-
termination and not arbitration. Either party may
seek judicial relief with regard to any of the forego-
ing.
Any other disputes concerning working condi-
tions, safety or other matters not excluded herein,
shall be subject to arbitration; provided a written no-
tice has been given as provided in ARTICLE IV,
Section 3 above. The Company and the Union shall
attempt by mutual agreement to appoint an arbitra-
tor, then either party may request a panel of arbitra-
tors to be submitted by the Federal Mediation and
Conciliation Service, State Conciliation Service or
American Arbitration Association, and an arbitrator
shall be selected from such panel by the process of
each party alternately eliminating one of the sug-
gested names until there remains only one name on
the panel. . . .
Between March 4 and May 8, 2003, Union President Pete
Maturino filed the following five grievances:
ACS, LLC
1081
(1) Darlene Brazil Performance Memo and Sus-
pension Grievance4
(2) Michelle Almaguer Work Assignment Griev-
ance5
(3) Notice Posting Grievance6
(4) Steve Hobbs and Darlene Brazil Grievance7
(5) Performance and Attitude Grievance8
None of these five grievances was resolved at step two and
on June 10, the Union’s attorney sent separate letters to the
State Mediation and Conciliation Service requesting a panel
of arbitrators for each grievance. Each of the letters stated,
inter alia, “This matter is a labor dispute involving interpre-
tation and application of a collective-bargaining agree-
ment.” A copy of each letter was sent to Respondent’s
Manager John Smith. The Respondent refused to arbitrate
these grievances, contending that they are not subject to
arbitration under the CBA.
The Union also grieved the November 2003 drug test-
ing of recalled seasonal workers, and on December 2,
2003, the Union requested that the parties “by-pass Step
2 of the grievance procedure and move to Article 5-
Arbitration.” On December 15, 2003, the Respondent
refused to proceed to arbitration and suggested that the
Union proceed to step 2. The grievance was not resolved
at step 2 and on January 8, 2004, the Union requested
arbitration in a letter from Maturino to Smith. The re-
quest for arbitration was renewed in a letter from the
Union’s attorney to the Respondent’s attorney on Febru-
ary 8, 2004. On February 12, 2004, the Respondent re-
fused to arbitrate the drug-testing grievance, contending
that it is not a dispute that is subject to arbitration under
the CBA.9
4 Brazil received a performance memo suspending her for 3 days for
her negative and uncooperative attitude.
5 The Union contended that Almaguer was improperly hired and
paid from the piece rate pool generated by senior unit employees.
6 The Union contended that the provisions described in a notice to
employees that had been posted by predecessor employer, Advanced
Cooling, effective January 21, 2001, must be followed by ACS. The
notice memorialized a supplemental agreement reached during the term
of the collective-bargaining agreement between the Union and Ad-
vanced Cooling regarding pay scale, seniority, and crew sizes when
additional employees were hired.
7 The Union contended that an operator was improperly given a
share of group piecework pay for work done by Hobbs and Brazil.
8 This grievance concerned a written warning issued to the entire
crew on February 27, 2003, for asserted violations of company policy
and a work rule.
9 Although the complaint also alleges that the Respondent refused to
arbitrate a December 12, 2003 “expansion of operations” grievance
concerning the staffing and pay of employees during the implementa-
tion of an expansion and diversification of plant operations, the judge
found that the General Counsel had not shown a request to arbitrate that
grievance. The judge also found that the Respondent did not refuse to
arbitrate a different “seniority and salary scale violation” grievance,
Analysis
The complaint alleges that the Respondent’s refusal to
arbitrate grievances was both an unlawful contract modi-
fication and an unlawful unilateral change.10 In refusing
to arbitrate the grievances, the Respondent relied on the
narrow language of the arbitration clause, which ex-
cludes from arbitration disputes “concerning contract
interpretation, . . . or matters which involve management
decision or business judgment” as well as “[p]rocedural
questions of compliance with the contract.” The Charg-
ing Party asserts that the grievances at issue here were
not excluded by the language of the contact, and that
even assuming that there was some arguable basis for the
Respondent’s position, the Respondent was required to
arbitrate the arbitrability of the grievances. The Charg-
ing Party further argues that the Respondent’s conduct is
a “wholesale” repudiation of the arbitration procedure.11
For the following reasons, we agree with the judge that
the Respondent did not violate Section 8(a)(5) and (1) of
the Act by refusing to arbitrate the grievances at issue in
this case.
Not every employer refusal to arbitrate violates Sec-
tion 8(a)(5) and (1) of the Act. Velan Valve Corp., 316
NLRB 1273, 1274 (1995), citing Mid-American Milling
Co., 282 NLRB 926 (1987). An employer’s refusal to
arbitrate grievances, pursuant to a collective-bargaining
agreement, violates Section 8(a)(5) of the Act if the em-
ployer’s conduct amounts to a unilateral modification or
wholesale repudiation of the collective-bargaining
agreement.12
We find that, under the circumstances of
this case, the Respondent’s refusal to arbitrate the griev-
ances at issue here did not constitute a unilateral modifi-
cation or wholesale repudiation of the contractual arbitra-
which was not the subject of a complaint allegation. Accordingly, the
judge found no unlawful refusal to arbitrate these grievances based on a
failure of proof. Because, as noted above, no exceptions were filed to
the judge’s factual findings, the “expansion of operations” grievance
and the “seniority and salary scale violation” grievance are not before
us for decision.
10 The complaint alleges that the Respondent failed to arbitrate
grievances “without prior notice to the Union and without affording the
Union an opportunity to bargain with the Respondent with respect to
this conduct and the effects of this conduct” (par. 6(m)), and that by
refusing to arbitrate grievances the Respondent has “failed to continue
in effect all the terms and conditions of employment” in the parties’
CBA (par. 6(n)) and has done so “without the Union’s consent.” (Par.
6(o).) The complaint further alleges that by this conduct, the Respon-
dent has “failed and refused to bargain collectively and in good faith
with the exclusive collective-bargaining representative of its employees
within the meaning of Section 8(d) of the Act in violation of Section
8(a)(1) and (5) of the Act.” (Par. 7.)
11 The Charging Party does not pursue the complaint’s alternative
theory of a violation (unlawful unilateral change).
12 3 State Contractors, 306 NLRB 711, 715 (1992); Indiana &
Michigan Electric Co., 284 NLRB 53, 59–60 (1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1082
tion provision and accordingly, did not violate Section
8(a)(5).
In Steelworkers v. Warrior & Gulf Navigation Co., 363
U.S. 574 (1960), cited by the Union, the Supreme Court
held that in a Section 301 suit to compel arbitration, a
reviewing court’s role is a limited one, “strictly confined
to the question whether the reluctant party did agree to
arbitrate the grievance or did agree to give the arbitrator
power to make the award he made.” Id. at 582. In such
cases, the Court noted, “[a]n order to arbitrate the par-
ticular grievance should not be denied unless it may be
said with positive assurance that the arbitration clause is
not susceptible of an interpretation that covers the as-
serted dispute.” Id. at 582–583. Assuming without de-
ciding the applicability of that standard to a Section
8(a)(5) case,13 it clearly has been met. As set forth
above, the parties’ CBA contains a very narrow arbitra-
tion clause, expressly excluding, inter alia, “[d]isputes
concerning contract interpretation.” As to five of the six
grievances at issue, the Union itself initially took the
position that the grievance involved contract interpreta-
tion. Thus, in the Union’s letters requesting the arbitra-
tion of those grievances, the Union’s attorney stated that
the “matter is a labor dispute involving interpretation and
application of a collective-bargaining agreement.” Given
the Union’s own characterization of the five grievances
as involving contract interpretation and the express ex-
clusion of such disputes from arbitration, we find that the
Respondent was under no obligation to arbitrate these
five grievances.14
With respect to the sixth grievance
(drug testing), even assuming arguendo that it did not fall
under the “contract interpretation” exclusion, the Re-
spondent’s refusal to arbitrate a single grievance would
not amount to a unilateral modification or wholesale re-
pudiation of the arbitration procedure. At most, that
amounted to a breach of contract, which “is not per se an
13 Member Liebman finds the Warrior & Gulf standard to be appli-
cable here. Exxon Chemical Co., 340 NLRB 357, 359 fn. 11 (2003)
(citing Warrior & Gulf, supra), enfd. 386 F.3d 1160, 1166 (D.C. Cir.
2004) (same). See her position set forth in fn. 15, infra.
14 See AT&T Technologies Inc. v. Communications Workers of
America, 475 U.S. 643, 648 (1986) (“arbitration is a matter of contract
and a party cannot be required to submit to arbitration any dispute
which he has not agreed to submit”). In light of the parties’ narrow
arbitration clause, we find that the Respondent did not agree to submit
these disputes to arbitration.
We also reject the Union’s argument that the Respondent was re-
quired to arbitrate the arbitrability of the grievances. Generally, the
question of whether the parties agreed to arbitrate a dispute is decided
by the courts, not the arbitrator, unless the “parties clearly and unmis-
takably provide otherwise.” AT&T Technologies, supra, 475 U.S. at
649. In this case, the parties did not “clearly and unmistakably pro-
vide” that disputes over arbitrability were to be decided by the arbitra-
tor. Accordingly, the Respondent had no obligation to submit the issue
of the arbitrability of the grievances to an arbitrator.
unfair labor practice.” Indiana & Michigan Electric,
supra, 284 NLRB at 59.15
The cases relied on by the Union to support its argu-
ment that the Respondent was required to arbitrate the
grievances are distinguishable. While Desert Coca Cola
v. Teamsters Local 14, 335 F.2d 198 (9th Cir. 1964),
held that the grievance in that case was arbitrable, the
court relied on the breadth and inclusiveness of the arbi-
tration clause16 and the uncertainty of the exclusion to
15 In dismissing the complaint, the judge found that the Respondent
had a “sound arguable basis” for its position that the grievances con-
cerned contract interpretation and were therefore excluded from arbitra-
tion. Chairman Battista and Member Schaumber agree with the judge’s
rationale. They note that the judge’s rationale is consistent with the
Board’s recent decision in Bath Iron Works, 345 NLRB No. 33 (2005),
which held that in cases alleging an unlawful modification of a con-
tract, rather that an unlawful unilateral change in employees’ terms and
conditions of employment, the “Board is limited to determining
whether the employer has altered the terms of a contract without con-
sent of the other party.” Id. slip op. at 3. Where the issue turns on the
resolution of two conflicting reasonable interpretations of the contract,
i.e., where there is a sound arguable basis for both positions and the
employer is not motivated by union animus or acting in bad faith, the
Board will not ordinarily find a violation. Id. slip op. at 4. Chairman
Battista and Member Schaumber agree with the judge that the Respon-
dent had a “sound arguable basis” for its belief that the grievances were
excluded from arbitration, and that the Respondent was not motivated
by union animus or acting in bad faith. Accordingly, they find that the
Respondent did not unlawfully modify the contract when it refused to
arbitrate.
Chairman Battista and Member Schaumber recognize that under
Steelworkers, courts typically will order arbitration, under Sec. 301,
unless it can be said “with positive assurance that the arbitration clause
is not susceptible of an interpretation that covers the asserted dispute.”
However, the issue here is whether the refusal to arbitrate was lawful
under Sec. 8(a)(5) of the Act. Sec. 301 is concerned with alleged
breaches of contract, and as our colleague acknowledges, a breach of
contract is not necessarily an unfair labor practice. Chairman Battista
and Member Schaumber believe that there is no unfair labor practice if
the employer has a “sound arguable basis” for its position.
In sum, although Chairman Battista and Member Schaumber concur
that there was no violation under the Steelworkers test, they also con-
clude that the appropriate test is Bath, and that there is also no violation
under that test.
Member Liebman dissented in Bath Iron Works from the majority’s
reliance on the “sound arguable basis” approach to decide the unfair
labor practice issue presented there. In her view, a “sound arguable
basis” analysis is even less appropriate here because it is the exact
opposite of the standard set by the Supreme Court in Steelworkers v.
Warrior & Gulf Navigation, 363 U.S. 574, 582–583 (1960), for deter-
mining arbitrability (arbitration can be denied only if it can be said
“with positive assurance that the arbitration clause is not susceptible of
an interpretation that covers the asserted dispute”). However, Member
Liebman joins her colleagues in dismissing the complaint in this case
because she finds, for the reasons set forth above, that the Warrior &
Gulf standard has been met here and that the Respondent’s conduct did
not amount to a unilateral modification or wholesale repudiation of the
arbitration procedure. Therefore, she agrees that the Respondent did
not violate Sec. 8(a)(5) and (1) by refusing to arbitrate the grievances.
16 “The decision of the arbitrator . . . upon any issue concerning the
terms of this Agreement shall be final, binding and conclusive upon all
parties concerned.”
ACS, LLC
1083
find the dispute arbitrable. 335 F.2d at 200–201. Like-
wise, Phoenix Newspapers v. Phoenix Mailers Union,
989 F.2d 1077 (9th Cir. 1993);17 Carpenters Local 1780
v. Desert Palace, 94 F.3d 1308 (9th Cir. 1996);18 and
Teamsters Local 70 v. Interstate Distributor Co., 832
F.2d 507 (9th Cir. 1987),19 all involved arbitration
clauses that were far broader than the one here, which is
extremely limited.
Given the narrow language of the exclusion in the par-
ties’ CBA, as well as the Union’s own characterization of
the disputes as involving contract “interpretation,” we
find that the Respondent’s conduct did not amount to a
unilateral modification or wholesale repudiation of the
contractual arbitration procedure. For these reasons, we
shall dismiss the complaint.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
William Mabry III, Esq., for the General Counsel.
A. James Clark, Esq. and Theresa Legere, Esq., of Yuma, Ari-
zona, for the Respondent.
David A. Rosenfeld, Esq., of Oakland, California, and Pete
Maturino, Representative, of Salinas, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS M. PATTON, Administrative Law Judge. This case
was tried on November 16–17, 2004, in Yuma, Arizona.
The charge was filed by United Food and Commercial
Workers International Union, Local 1096, AFL–CIO, CLC (the
Union) on January 30, 2004. The complaint issued on April 30,
2004. The complaint alleges violations of Section 8(a)(1) and
(5) of the National Labor Relations Act (the Act) by ACS, LLC
(the Respondent). The Respondent answered, denying any
violation of the Act.
The General Counsel and the Respondent have filed post-
hearing briefs that have been carefully considered. The Union
filed a statement that it joins in the brief of the General Coun-
sel. On the entire record, including my observation of the de-
meanor of the witnesses and after considering the briefs and
arguments of counsel, make the following findings of fact,1
conclusions of law, and recommended Order.
17 “[P]arties agreed to submit all disputes over the interpretation and
application of any clause of the agreement to arbitration.” 989 F.2d at
1080.
18 The arbitration clause requires all disputes “regarding the interpre-
tation or application of the provisions” of the agreement to be submit-
ted to arbitration. 94 F.3d at 1310.
19 “Any grievance or controversy affecting the mutual relations of
the Employer and the Union” was to be resolved by arbitration. 832
F.2d at 508.
1 In assessing credibility, testimony contrary to my findings has not
been credited, based upon a review of the entire record and considera-
I. POSTHEARING MOTIONS
A. Motion to Amend the Complaint
At the opening of the hearing the General Counsel moved to
amend the complaint in the manner set forth in a notice of in-
tent to amend. The motion was granted in part and denied in
part. The Respondent opposed the amendment. On brief the
General Counsel renews the denied aspects of the motion to
amend. The position of the General Counsel is that the amend-
ments should be allowed to permit the consideration of unspeci-
fied past practices.
The amendments allege that the Respondent was a successor
to Advanced Cooling Systems, Inc., a different entity, as of
July 2, 2001, when Respondent assumed the Advanced Cooling
operation in Yuma, Arizona.
The amendments not allowed are that Respondent is a dis-
guised continuance and an alter ego of Advanced Cooling, with
a bargaining relationship since 1984, and that several individu-
als were agents of Respondent and Advanced Cooling. Ad-
vanced Cooling is not named in the charge, has not been made
a party, and has not been served. The General Counsel re-
served the option of urging that Advanced Cooling was jointly
liable for unfair labor practices by ACS. There has been no
claim that the proposed agency allegations are related to any
issue other than the proposed disguised continuance and alter
ego allegations.
There are two central issues in the case. One is whether
ACS violated the Act by requiring drug tests for union-
represented employees recalled from layoff. The other is
whether ACS violated the Act by refusing to arbitrate certain
grievances under a collective-bargaining agreement with the
Union.
The General Counsel has not demonstrated how the litigation
of the disguised continuance and alter ego questions would be
probative on the allegation that the challenged drug test re-
quirement was an unprivileged unilateral change. There is no
dispute that the challenged drug test was a new requirement
first used about a year after Respondent assumed the operation
and had entered into a new collective-bargaining agreement
covering the collective-bargaining unit represented by the Un-
ion.
Regarding the refusals to arbitrate certain grievances, the at-
torneys for the Respondent twice represented at the hearing that
Advanced Cooling had never arbitrated a grievance. Those
representations are unchallenged with an offer of proof or oth-
erwise.
The renewed motion to amend is denied pursuant to Section
102.17 of the Board’s Rules and Regulations as not being just.
The motion was untimely without extenuating circumstances;
Advanced Cooling was not given notice; it was likely that the
hearing would be delayed and extended if the denied amend-
ments were allowed; it was not shown that there was a substan-
tial likelihood that the disallowed amendments, if proven,
would be probative on the merits of the violations alleged; and
tion of the probabilities and the demeanor of the witnesses. See NLRB
v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1084
granting the motion would be inconsistent with the orderly
administration of the Act.
B. Motion to Reopen the Record
On December 22, 2004, the Respondent filed with its
posthearing brief a motion to reopen the record and admit cer-
tain documents. The motion is made a part of the record. The
documents that are the subject of the motion were filed with the
motion and marked Respondent’s Exhibits 7 and 8 (herein R.
Exh. 7 and R. Exh. 8).
Respondent’s Exhibit 7 is Respondent’s statement of facts in
support of its Motion for Summary Judgment filed in July
2004, with 34 attached exhibits, marked 1–26, including 17A–
17E and 19A–19E. The exhibits to Respondent’s Exhibit 7 are
identified herein as Respondent’s Exhibits 7.1–7.26.
The General Counsel opposes the receipt of the statement of
facts and its exhibits and moves to strike those portions of the
Respondent’s brief that refer to those documents based on non-
compliance with unspecified provisions in the Board’s Rules
and Regulations. The General Counsel contends that affidavits
of Karen Burreson (R. Exh. 7.5) and Theresa Legere (R. Exh.
7.9) should not be received, since they did not testify at the
hearing. The General Counsel contends that Respondent’s
Exhibits 7.1–7.4, 7.6–7.8, 7.10–7.15, 7.17B–7.17E, 7.18,
7.19A–7.19E, 7.20 and 7.22–7.24 have already been admitted
into evidence and are therefore duplicative and cumulative.
The General Counsel asserts that Respondent’s Exhibit 7.16,
7.21 and 7.25 are irrelevant. Respondent’s Exhibits 7.17A and
7.26 are not specifically addressed.
The Motion for Summary Judgment was incorporated into
the formal papers prepared in advance of the hearing and intro-
duced by the General Counsel. The Motion for Summary Judg-
ment refers extensively to the statement of facts (Respondent’s
Exhibit 7). Counsel for ACS states that he was merely follow-
ing the local rules in the United States District Court, District of
Arizona, which he accurately states require the filing of a sepa-
rate statement of facts on which a party relies in support of a
Motion for Summary Judgment. The formal papers, which
were assembled by the Agency, include the General Counsel’s
brief in opposition to the Motion for Summary Judgment that
includes statements regarding the facts. I conclude that the
statement of facts and the exhibits thereto are a part of the mo-
tion for summary judgment and it is received as Respondent’s
Exhibit 7, as a part of the formal papers in the case, with the
limitations discussed below.2
Documents that are incorporated in the formal papers are not
necessarily received for the truth of their contents. Except to
establish admissions of a party or to impeach, affidavits gener-
ally are received substantively in unfair labor practice proceed-
ings only if it is established that the declarant is deceased or
unavailable, or the taking of testimony poses a threat to the
health of the witness, because there is no opportunity for the
opponent to cross-examine or the judge to observe demeanor.
There has been no contention that Karen Burreson or Theresa
2 The formal papers, GC Exh. 1, are voluminous and are in two vol-
umes. When the General Counsel offered that exhibit, the parties were
given leave to supplement the exhibit if documents had been inadver-
tently omitted because of administrative error.
Legere come within these exceptions, or that they were other-
wise unavailable. I shall not consider the affidavits of Karen
Burreson (R. Exh. 7.5) and Theresa Legere (R. Exh. 7.9) sub-
stantively to support the Respondents position. See Marine
Engineers District 1 (Dutra Construction), 312 NLRB 55, 55
(1993).
Respondent’s Exhibit 7.26 is a letter from the union presi-
dent to the Respondent on the Union’s letterhead, signed by the
union president and the content relates to matters the union
president testified about. The General Counsel does not con-
tend that the document is not authentic. My comparison of the
letter with other letters in the record convinces me that the letter
is authentic. Nevertheless, I have not relied on Respondent’s
Exhibit 7.26 substantively to support the Respondent’s posi-
tion. The content of the letter would not affect the ultimate
decision in the case.
To the extent that the exhibits to Respondent’s Exhibit 7 are
acknowledged by the General Counsel to be duplicates of docu-
ments already in the record. I decline to strike those portions of
the Respondent’s brief that refer to the documents. Granting
the motion would not serve the ends of justice. A review of the
exhibits discloses that Respondent’s Exhibit 7.17A was also
admitted as Respondent’s Exhibit 3.
The document designated Respondent’s Exhibit 8 is Respon-
dent’s amended answer, dated November 12, 2004, which was
not included in the formal papers, General Counsel’s Exhibit 1.
The Respondent’s unopposed posthearing motion to make the
amended answer a part of the record is granted and it is re-
ceived as Respondent’s Exhibit 8.
II. JURISDICTION
The Respondent, ACS, LLC, is an Arizona limited liability
corporation that is engaged in the vicinity of Yuma, Arizona, in
the operation of commercial cooling, packing, and shipping of
fruits and vegetables. The pleading and the evidence show that
Respondent meets the Board’s standards for asserting jurisdic-
tion based on its operations and that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
III. THE LABOR ORGANIZATION
The pleading and the evidence show that United Food and
Commercial Workers International Union, Local 1096, AFL–
CIO, CLC UFCW Local 1000 is a labor organization within the
meaning of Section 2(5) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union and ACS are parties to a written collective-
bargaining agreement (the CBA) effective from November 20,
2002, to May 1, 2006, covering a unit of production employees
(the unit) at a facility in Yuma, Arizona (the plant). There are
approximately 30 employees in the unit. The parties agree, the
record shows and I find that the Union is the exclusive collec-
tive-bargaining representative of the unit based under Section
9(a) of the Act. The unit consists of the following employees:
All plant production employees engaged in the handling of
commodities (excluding watermelon and broccoli icing) at its
ACS, LLC
1085
vacuum cooling plant in Yuma, Arizona at 4102 S. Ave 31/2
E; but excluding office clerical personnel, maintenance per-
sonnel, office managers and supervisory employees as de-
fined by the Act.
The CBA was the first collective-bargaining agreement be-
tween ACS and the Union. ACS began operating the plant in
2001. The work performed at the plant was like the work that
had been done previously by another entity, Advanced Cooling
Systems, Inc. at a different facility in the Yuma area. There
was a fire at the Advanced Cooling facility that apparently
made it unusable. When ACS began operations at the plant in
2001, it hired employees and supervisors that had been
employed by Advanced Cooling and performed similar work,
albeit at a different location. ACS acknowledges, for the pur-
poses of this proceeding, that ACS is a successor employer to
Advanced Cooling, within the meaning of NLRB v. Burns
Security Services, 406 U.S. 272 (1972). The record evidence is
consistent with ACS being a sucessor to Advanced Cooling. I
find that for the purposes of this proceeding the Respondent
ACS is a successor employer to Advanced Cooling Systems,
Inc., as alleged in paragraphs 2(e) and (f) of the amended com-
plaint.
The Union represented the Advanced Cooling employees be-
fore ACS assumed the operation. Advanced Cooling and the
Union were parties to a collective-bargaining agreement cover-
ing the unit that had an expiration date of May 1, 2002. The
Advanced Cooling agreement had a successor provision in
typical form and from the time ACS began operating the plant
until the effective date of the CBA, ACS maintained the wages
and benefits of the unit that had previously been in effect at
Advanced Cooling. The record does not show that ACS failed
to comply with the Advanced Cooling contract prior to the
effective date of the CBA.
B. Findings and Conclusions
1. Requiring drug tests for recalled employees3
The unit employees are primarily (and possibly entirely) sea-
sonal workers. The CBA provides for seniority rights that are
retained by seasonal workers during the off-season. Employees
on layoff during the off-season are sent recall notices prior to
the beginning of a new season. The recall rights are consistent
with the practice before ACS began operating the plant. Be-
cause of the seasonal nature of the Respondent’s business, em-
ployees retained their status as employees of ACS while on
layoff. Marlin-Rockwell Corp., 19 NLRB 648, 655 (1940),
enfd. as modified on other grounds 116 F.2d 586, 588 (2d
Cir.1941), cert. denied 313 U.S. 594 (1941).
When the seasonal employees were recalled for the season
that began in November 2003, they were required to submit to
drug testing as a condition of returning to work. The complaint
alleges that this drug-test requirement was imposed without
prior notice to the Union and without affording the Union an
opportunity to bargain with the Respondent regarding the re-
quirement and its effects. This was the first time that recalled
3 Complaint par. 6(a).
unit employees had ever been required to submit to drug testing
before beginning work.
The CBA includes a management-rights clause, article X,
which includes the following provision:
2. Employees shall comply with all lawful rules and orders,
including the Company’s “Work Rules Policy,” and “Alcohol
and Substance Abuse Policy,” not inconsistent with this
Agreement, and agree to work for the Company in the capac-
ity retained.
The “Alcohol and Substance Abuse Policy” (the drug policy)
is attached to the CBA and the General Counsel acknowledges
that the drug policy is incorporated in the CBA. The drug pol-
icy applies to all employees and applicants for employment and
provides for testing for alcohol and illegal drugs. There are
provisions for discipline and referral for treatment of those who
fail drug tests. The drug policy requires all employees to be
given a copy of the policy and the evidence does not show that
ACS failed to provide a copy of the policy to the unit employ-
ees during the 2002 season. The policy provides for tests to be
conducted in various situations. The drug policy states, in part:
VII. TESTING
. . .
E. Additional Testing
Additional testing may also be conducted as requires
[sic] by applicable state or federal laws, rules, or regula-
tions or deemed necessary by the Company. Upon initial
implementation of this Substance Abuse Policy, all current
employees will be subject to testing.
The evidence does not show that the CBA and drug policy
were in effect when employees were recalled for the 2002 sea-
son. The complaint alleges that ACS violated Section 8(a)(1)
and (5) by requiring recalled seasonal workers to submit to
drug testing prior to beginning work in November 2003.
Drug and alcohol testing is a mandatory subject of bargain-
ing. See Johnson Bateman Co., 295 NLRB 180 (1989). The
General Counsel contends that ACS did not require preseason
drug testing prior to November 2003, and that ACS accordingly
had a duty to consult with the Union concerning implementing
testing of returning employees. ACS contends that drug testing
was bargained for and incorporated in the CBA. ACS argues
that when a contract provision addresses an employer action
and gives the employer discretion to perform some act, the
employer is not required to bargain before exercising its discre-
tion. The Employer cites NLRB v. Honolulu Star-Bulletin, 372
F.2d 691,693 (9th Cir. 1967), denying enfd. 153 NLRB 763
(1965).
The CBA provision giving ACS the right to require addi-
tional testing “deemed necessary by the Company” is a clear
and unmistakable waiver by the Union of bargaining regarding
the Respondent’s decision to require the additional drug testing.
In an analogous situation, the Board concluded in Johnson
Bateman, supra, that the unilateral implementation of an atten-
dance incentive bonus plan was privileged. The Board found
the reasoning of the Ninth Circuit in NLRB v. Honolulu Star-
Bulletin, supra, to be particularly applicable circumstances
where there are express contract terms that give an employer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1086
discretion to change a term or condition of employment other-
wise subject to bargaining. Johnson Bateman, supra, at 189.
Assuming, without deciding, that there was not a clear and
unmistakable waiver regarding the challenged drug testing, the
evidence shows that ACS acted in accordance with the terms of
the CBA as ACS construed it, there was a sound arguable basis
for so construing the CBA, and there has been no showing that
ACS was motivated by union animus or was acting in bad faith.
In such circumstances there is not a violation. Yellow Freight
Systems, Inc., 313 NLRB 309 (1993), and cases cited there. A
different conclusion is not warranted merely because the pre-
sent case involves drug testing. Intrepid Museum Foundation,
Inc., 335 NLRB 1 (2001).
The General Counsel also argues that there was a duty to
bargain about the effects of the challenged testing. Assuming,
without deciding, that the Union requested effects bargaining
this contention lacks merit. The Drug Policy that is incorpo-
rated in the CBA addresses in detail the negotiated conse-
quences when an employee fails a drug test. Thus, there was
bargaining on effects when the CBA was negotiated. See John-
son Bateman, supra.
In view of the foregoing, I recommend dismissal of the alle-
gations that ACS violated Section 8(a)(1) and (5) by requiring
recalled seasonal workers to submit to drug testing under the
negotiated drug policy.
2. Refusals to arbitrate grievances
a. Facts
The CBA has a no-strike, no-lockout provision and requires
that all disputes and grievances be resolved under the grievance
procedure in the agreement. The CBA includes a two-step
formal grievance procedure prior to either arbitration or judicial
enforcement. The CBA requires that formal grievances at step
one and step two to be in writing, describe the facts, state the
remedy sought and identify the sections of the CBA claimed to
have been violated. If the grievance is not resolved at step two
the CBA provides:
3. If the grievance is not resolved at the conference as
provided for In STEP TWO above, then either party may
request, in writing, within fifteen (15) days of the confer-
ence that the matter proceed in accordance with ARTICLE
V. Failure of either party to give such written notice shall
waive the rights to proceed in accordance with ARTICLE
V.
ARTICLE V–ARBITRATION
1. Disputes concerning contract interpretation, the
disposition of assets, the right of sale, the right to control
the number of hours that the plant be open or closed down
either for lack of business or for economic reasons, or mat-
ters which involve management decision or business
judgment shall not be subject to arbitration. Procedural
questions of compliance with the contract shall be subject
to judicial determination and not arbitration. Either party
may seek judicial relief with regard to any of the forego-
ing.
Any other disputes concerning working conditions,
safety or other matters not excluded herein, shall be sub-
ject to arbitration; provided a written notice has been given
as provided in ARTICLE lV, Section 3 above. The Com-
pany and the Union shall attempt by mutual agreement to
appoint an arbitrator, then either party may request a panel
of arbitrators to be submitted by the Federal Mediation and
Conciliation Service, State Conciliation Service or Ameri-
can Arbitration Association, and an arbitrator shall be se-
lected from such panel by the process of each party alter-
nately eliminating one of the suggested names until there
remains only one name on the panel. . . .
This contract language is identical to language in the April
1998–May 2002 Advanced Cooling agreement, with the excep-
tion that the “arbitrator” was substituted for “arbiter” in the 4th
line of the final quoted paragraph.
The facts regarding the grievances that the Respondent is al-
leged to have unlawfully refused to arbitrate will be addressed
individually. The record also contains evidence relating to a
grievance addressing the issue of whether the CBA covered
employees working for another entity, Dandy Cooling, LLC.
The lawfulness of the refusal to arbitrate the Dandy Cooling
grievance is not the subject of a complaint allegation and was
not fully litigated. On January 13, 2004, prior to the filing of
the charge, the Respondent’s attorney had advised the Union’s
attorney by letter that the Respondent was refusing to arbitrate
the Dandy Cooling grievance. The Respondent timely objected
to the receipt of evidence regarding the Dandy Cooling griev-
ance. Some evidence was received over objection, based on a
representation that it was relevant to the allegations in com-
plaint paragraph 6(b)(7), discussed below. As it developed,
complaint paragraph 6(b)(7) relates to a completely different
grievance. The Dandy Cooling grievance will not be consid-
ered further.
(1) Darlene Brazil performance memo and
suspension grievance4
On March 4, 2003,5 Union President Pete Maturino filed a
written grievance with ACS Manager John Smith regarding a
performance memo issued to unit employee Darlene Brazil for
having a negative and uncooperative attitude and suspending
her for 3 days. Smith replied in writing on March 14, denying
the grievance. Maturino answered on March 14, offering to
meet regarding the grievance or proceed to arbitration. ACS
continued to deny the grievance. By letter of May 30, Maturino
advised Smith that the Union was sending the grievance to the
union attorney to schedule the matter for arbitration. On June
10, a union attorney sent a letter to the agency that provided
arbitrators requesting a panel of arbitrators for this grievance.
The letter included the statement, “This matter is a labor dis-
pute involving interpretation and application of a collective-
bargaining agreement.” A copy of the letter was sent to Smith.
The Respondent has refused to arbitrate the grievance, contend-
ing that it is not a dispute that is subject to arbitration under the
CBA.
4 Complaint par. 6(b)(1).
5 Unless otherwise indicated, all dates in this section are 2003.
ACS, LLC
1087
(2) Michelle Almaguer work assignment grievance6
On March 14, Maturino filed a written grievance contending
that employee Michelle Almaguer was improperly hired and
paid from the piece rate pool generated by senior unit employ-
ees. Smith replied in writing on March 31, denying the griev-
ance. Maturino answered on April 2, offering to discuss the
grievance at a meeting scheduled for April 17. The grievance
was not resolved. By letter of May 30, Maturino advised Smith
that the Union was sending the grievance to the union attorney
to schedule the matter for arbitration. On June 10, a union
attorney sent a letter to the agency that provided arbitrators
requesting a panel of arbitrators for this grievance. The letter
included the statement, “This matter is a labor dispute involv-
ing interpretation and application of a collective-bargaining
agreement.” A copy of the letter was sent to Smith. The Re-
spondent has refused to arbitrate the grievance, contending that
it is not a dispute that is subject to arbitration under the CBA.
(3) Notice posting grievance7
On April 11, Maturino filed a written grievance contending
that the provisions described in a notice to employees that had
been posted by Advanced Cooling effective January 21, 2001,
(the notice) must be followed by ACS. The notice memorial-
ized a supplemental agreement reached during the term of the
collective-bargaining agreement between the Union and Ad-
vanced Cooling regarding pay scale, seniority, and crew sizes
when additional employees were hired. ACS’s position, re-
flected in a March 31 memo from Smith to Maturino, was that
the notice provisions had not been incorporated into the CBA
and ACS was not bound by the terms reflected in the notice.
The grievance was not resolved at step two and on June 10, a
union attorney sent a letter to the agency that provided arbitra-
tors requesting a panel of arbitrators for this grievance. The
letter included the statement, “This matter is a labor dispute
involving interpretation and application of a collective-
bargaining agreement.” A copy of the letter was sent to Smith.
The Respondent has refused to arbitrate the grievance, contend-
ing that it is not a dispute that is subject to arbitration under the
CBA.
(4) Steve Hobbs and Darlene Brazil grievance8
On May 8, Maturino filed a written grievance contending
that an operator was improperly given a share of group piece-
work pay for work done by Hobbs and Brazil. The grievance
was not resolved at step two and the Union requested arbitra-
tion. On June 10, a union attorney sent a letter to the agency
that provided arbitrators requesting a panel of arbitrators for
this grievance. The letter included the statement, “This matter
is a labor dispute involving interpretation and application of a
collective-bargaining agreement.” A copy of the letter was sent
to Smith. The Respondent has refused to arbitrate the griev-
ance, contending that it is not a dispute that is subject to arbitra-
tion under the CBA.
6 Complaint par. 6(b)(2).
7 Complaint par. 6(b)(3).
8 Complaint par. 6(b)(4).
(5) Performance and attitude grievance9
On March 4, Maturino filed a written grievance with Smith
regarding a written warning issued to the entire crew on Febru-
ary 27, for asserted violations of company policy and a work
rule. The grievance was not resolved at step two. Maturino
met with Smith on May 22, and the grievance was discussed.
On May 30, Maturino sent a letter to Smith stating that he was
forwarding the matter to the Union’s attorney to schedule arbi-
tration. On June 10, a union attorney sent a letter to the agency
that provided arbitrators requesting a panel of arbitrators for
this grievance. The letter included the statement, “This matter
is a labor dispute involving interpretation and application of a
collective-bargaining agreement.” A copy of the letter was sent
to Smith. The Respondent has refused to arbitrate the griev-
ance, contending that it is not a dispute that is subject to arbitra-
tion under the CBA.
(6) Drug-testing grievance10
The Union grieved the November 2003 drug testing of re-
called seasonal workers, discussed supra. The grievance was
denied at step two and on January 8, 2004, the Union requested
arbitration in a letter from Maturino to Smith. The request for
arbitration was renewed in a letter from the Union’s attorney to
the Respondent’s attorney on February 8, 2004. By letter from
the Respondent’s attorney to the union attorney ACS refused to
arbitrate the drug-testing grievance on February 12, 2004. The
Respondent has refused to arbitrate the grievance, contending
that it is not a dispute that is subject to arbitration under the
CBA.
(7) Operation expansion grievance11
On December 12, Maturino filed a grievance in a letter to
Smith alleging the violation of the CBA regarding the staffing
and pay of employees in implementing an expansion and diver-
sification of operations at the plant. The stated subject of the
letter was “expansion of operations.” There followed an ex-
change of letters regarding the issues. On January 8, 2004,
Maturino wrote to Smith and stated that he would like to meet
and negotiate regarding the issues, but would like to wait until
the end of January so Smith could provide requested informa-
tion. On January 19, 2004, Smith replied by letter, stated that
the information had already been provided and proposed dates
to meet in February 2004. These documents are part of General
Counsel’s Exhibit 15. The complaint alleges that by letters of
January 8 and February 8, 2004, the Union requested arbitration
of the December 12 expansion of operations grievance. The
evidence, however, does not show that there was a request to
arbitrate the December 12 grievance. The complaint also al-
leges a request for arbitration by letter on January 27, 2004, that
was not established.
There is confusion in the record of the December 12 “expan-
sion of operations” grievance (sometimes referred to in the
record as the Leaf Tek or True Leaf issue) with a different
grievance referred to in another January 8, 2004 letter from
9 Complaint par. 6(b)(5).
10 Complaint par. 6(b)(6).
11 Complaint par. 6(b)(7).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1088
Maturino to Smith regarding “seniority and salary scale viola-
tion” that is also a part of General Counsel’s Exhibit 15.
Maturino testified that the “seniority and salary scale violation”
letter was the Union’s grievance “that dealt with the company
employing a fourth dispatcher and allowing the fourth dis-
patcher to be a part of the piece rate pool.” Maturino suggested
in his letter that because the dispatcher issue had already been
discussed (prior to a grievance being filed), “I would be willing
to proceed with Article 5-Arbitration on this issue. Would you
please advise.” There is no evidence that the Union otherwise
requested arbitration of this grievance until the Union’s attor-
ney sent a letter to ACS’s attorney on February 8, 2004, follow-
ing the filing of the charge, stating that ACS had refused to
arbitrate the “seniority and salary scale violation” grievance
and demanding that the ACS proceed with arbitration. By letter
of February 18, 2004, the ACS attorney responded to the Un-
ion’s attorney. The ACS attorney reviewed the history of the
grievance, took the position that the parties had not completed
the steps preceding arbitration and expressed agreement that the
grievance was subject to arbitration if it was not resolved
through the grievance procedure. This evidence does not show
that there was a refusal to arbitrate the “seniority and salary
scale violation” grievance, which is not the subject of a com-
plaint allegation.
b. Analysis of refusals to arbitrate
The CBA explicitly excludes from arbitration disputes con-
cerning contract interpretation. The General Counsel has not
proven and does not explicitly argue that the grievances at issue
do not concern contract interpretation. Based on the record
evidence, including the CBA, there was a sound arguable basis
for the Respondent’s position that the grievances concerned
contract interpretation. There has been no showing that ACS
was motivated by union animus or was acting in bad faith. See
Yellow Freight Systems, Inc., 313 NLRB 309 (1993), and cases
cited there.
A refusal to arbitrate a grievance is not presumptively a vio-
lation of the Act. Velan Valve Corp., 316 NLRB 1273 (1995),
and the cases cited there. It is well settled that arbitration is
matter of contract and party cannot be required to submit to
arbitration any dispute that the party has not agreed to submit.
AT&T Technologies, Inc. v. Communications Workers, 475
U.S. 643 (1986); Litton Financial Printing Div. v. NLRB, 501
U.S. 190 (1991). “Whether or not a company is bound to arbi-
trate, as well as what issues it must arbitrate, is a matter to be
determined by the court, and a party cannot be forced to ‘arbi-
trate the arbitrability question.’” Id. at 208, quoting AT&T
Technologies, Inc. v. Communications Workers, 475 U.S. 643,
651 (1986). See also Miller Compressing Co., 309 NLRB
1020, 1023 (1992).
The grievances that are subject to arbitration under the nego-
tiated terms of the CBA are limited. The General Counsel does
not contend that the contract provisions should be nullified, but
that would be the effect of finding the violations alleged. It
would be inappropriate and would exceed my authority to re-
write the contract negotiated by the parties. The Union was
free to judicially challenge Respondent’s asserted actions that
were the subjects of the grievances or to file suit to compel
arbitration, but had no right protected by the Act to have an
arbitrator decide the grievance in the first instance.
In view of the foregoing I recommend dismissal of the alle-
gations that the Respondent violated Section 8(a)(1) and (5) of
the Act by refusing to arbitrate the grievances described in
complaint paragraphs 6(a), (b)(1), (b)(2), (b)(3), (b)(4), (b)(5),
and (b)(6). I recommend dismissal of the allegations that the
Respondent violated the Act by refusing to arbitrate the griev-
ances described in complaint paragraph 6(b)(7) because there
was a failure of proof regarding the facts alleged. Assuming,
without finding, that the facts alleged in complaint paragraph
6(b)(7) were proven, I recommend that the alleged refusal to
arbitrate regarding that grievance also be dismissed for the
same reasons as the other refusals to arbitrate.
CONCLUSIONS OF LAW
1. ACS, LLC is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. United Food And Commercial Workers International Un-
ion, Local 1096, AFL–CIO, CLC is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.12
ORDER
The complaint is dismissed.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.