Armour and Co.

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sioux Quality Packers, Division of Armour and Company and Phillip C. Mossberg and Eugene Means and Eugene E. Means. Cases 18-CA-4380 and 18-CA-4783 March 23, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER ORDER It is hereby ordered that this proceeding be, and it hereby is, remanded to the Administrative Law Judge, who shall prepare and serve on the parties a Supplemental Decision containing findings of fact, conclusions of law, and recommendations in accor- dance with this Order and that, following service of such Supplemental Decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applica- ble. On November 22, 1976, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and the Respon- dent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided, for the reasons set forth below, to remand the case to the Administrative Law Judge for the issuance of a Supplemental Decision. The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by discriminatorily discharging Eugene Means on October 11, 1974, reinstating him without backpay on December 31, 1974, and again discharging him on May 6, 1975. The Administrative Law Judge found it unnecessary to consider the complaint on the merits as he viewed the issues herein as ones more appropriately left to the grievance and arbitration procedures contained in the collective-bargaining contract between Respondent and the Union which represents Means rather than to the Board's processes, under the policies enunciated in Collyer Insulated Wire, A Gulf and Western System Co., 192 NLRB 837 (1971), and National Radio Company, Inc., 198 NLRB 527 (1972).1 For the reasons fully set forth in our separate opinions in our recently issued decision in General American Trans- portation Corporation, 228 NLRB 808 (1977), we agree with the General Counsel that we should not defer to the arbitration procedures. Accordingly, we shall remand this case to the Administrative Law Judge so that he may make the appropriate findings of fact and credibility resolutions and issue a Supplemental Decision on the merits. I The Union (Local P 1142, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO) which represents the unit of which Means is a member is not a party to this proceeding. 228 NLRB No. 115 MEMBER WALTHER, concurring: I agree with my colleagues that this proceeding should be remanded to the Administrative Law Judge for a consideration of the merits and the issuance of a Supplemental Decision. I do so, however, for differ- ent reasons than my colleagues in the majority. As fully set forth in their separate opinions in General American Transportation Corporation, supra, Chairman Murphy and Member Jenkins would not defer to the grievance arbitration provisions of a collective-bargaining agreement in a case such as the one herein where a violation of Section 8(a)(3) has been alleged. As set forth in my dissenting opinion in General American Transportation, I would continue to defer to the arbitration process in 8(a)(3) cases. Under the special circumstances of the instant case, however, where there has been substantial delay by the Union in proceeding to arbitration, I agree that deferral to the grievance arbitration provisions of the collective-bargaining agreement is not appropriate. The record discloses and the Administrative Law Judge found that employee Means was suspended on October 8, 1974, and discharged several days later for allegedly failing to report to work on October 8. A grievance was immediately filed by Means under the collective-bargaining agreement. The grievance was processed through the first several steps within several days with no resolution. On November 8, 1974, Means filed the charge against Respondent in Case 18-CA-4380, alleging that he had been dis- charged in violation of Section 8(a)(3) and (1). At the same time, he also filed a charge against his union, which is not a party herein, claiming that they were not diligently processing his grievance. The latter charge was subsequently withdrawn because Means became convinced that the Union was "working on" and "moving" his grievance. On December 17, 1974, the Regional Director notified the parties that he was not issuing a complaint on the charge that remained, but was instead deferring the matter to the arbitration 2 Member Jenkins generally would not defer to arbitration cases ansing under any section ofthe Act. SIOUX QUALITY PACKERS procedures. At the end of December 1974, Means was reinstated to his job, but without backpay, and the grievance over the matter has not been resolved. On May 6, 1975, Means was again suspended and then discharged the following day, allegedly for insubordination. A grievance was again filed and had been appealed to the third step of the grievance procedure by May 15, 1975. On August 7, 1975, Respondent denied the grievance at the third step. On November 3, 1975, the Union appealed Means' grievances to what is referred to by Respondent and the Union as the "pre-arb" level, discussed below. On November 6, 1975, Means filed the charge in Case 18-CA-4783 alleging the second suspension and discharge as violative of the Act. On December 24, 1975, the Regional Director deferred the second charge to the arbitration process. Thereafter, on March 12, 1976, the Regional Director revoked his decision to defer to arbitration because of the undue delay in the resolution of the grievances. He noted that no definite dates had been set for the various arbitrations. The complaint in this proceeding then issued and the hearing in the instant proceeding was held. The Administrative Law Judge decided that the subject matter of the complaint, i.e., the discharges of Means, was cognizable under the grievance arbitra- tion provisions of the collective-bargaining agree- ment between Respondent and the Union. He therefore dismissed the complaint. The collective-bargaining agreement between the Respondent and the Union contains a three-step grievance procedure culminating in arbitration, if invoked by the Union.3 The Respondent and Union have also developed, by mutual assent, a stage of the grievance procedure known as the "pre-arb" level which includes grievances that have progressed through the first three steps of the grievance machin- ery and are ripe for arbitration but have not been called to arbitration by the Union. If the Union does not request arbitration, an unsettled grievance that is in the "pre-arb" stage may apparently remain there indefinitely. As noted above, Means' grievances were in the "pre-arb" stage when the decision to defer to arbitra- tion was revoked by the Regional Director. At that point, the original grievance had been in existence for some 17 months and the second grievance had been in existence in excess of 10 months. Yet neither grievance had been called to arbitration by the Union. I find such a delay unjustified. Accordingly, 3 The contract provides: Upon the Union's request any grievance involving the discharge or suspension of an employee which is appealed to arbitration shall be submitted to the arbitrator within 30 days following the date the "notice of appeal to arbitrator" was forwarded by the union to the company. 1035 in the circumstances presented here, I agree with my colleagues that this proceeding should be remanded to the Administrative Law Judge for consideration of the merits and the issuance of a Supplemental Decision. DECISION STATEMENT OF THE CASE JAMES M. FITZPATRicx, Administrative Law Judge: In this case a slaughterhouse worker was fired, later rehired with no backpay, and still later fired again. The main question on the merits is whether he was fired for cause or because he was an energetic shop steward . But there are two preliminary questions. On one, whether one of the charges was timely served on Respondent, I find the service was timely. On the other, whether the dispute should be arbitrated, I find it should be and for that reason do not reach the question on the merits. The case arises initially from unfair labor practice charges filed November 8, 1974, by two individuals, Philip C. Mossberg and Gene Means, against Sioux Quality Packers, Division of Armour and Company (the Respon- dent). A second set of charges were filed November 6, 1975, by Eugene E. Means, stewart (sic) in union, against Respondent' On June 9, 1976, the Regional Director for Region 18 of the National Labor Relations Board (the Board) ordered the two cases consolidated and issued a consolidated complaint alleging that Respondent had engaged in unfair labor practices proscribed by Section 8(aX3) and (1) of the National Labor Relations Act, as amended (the Act), by discharging Means on October 11, 1974, reinstating him without backpay on December 31, 1974, discharging him again on May 6, 1975, and not thereafter reinstating him, all because he engaged in activities on behalf of Local P 1142, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (the Union). Respondent answered on June 18, 1976, putting in issue the alleged motive for its actions respecting Means and also the conclusionary allegations that it had engaged in unfair labor practices. The case was heard before me at Sioux City, Iowa, on July 21 and 22, 1976. Based on the record,2 including consideration of the motions and arguments of counsel and the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS of FACT A. The Employer The Respondent, a corporation with principal offices in Phoenix, Arizona, is engaged in various States of the United States and in foreign countries in meat processing and distributing. One of its facilities, known as its Sioux ' It is apparent from the record that the Means signing each set of charges is the same person and that Armours , named as Respondent in Case 18-CA- 4783, is the same Respondent as named in Case 18-CA-4380. 2 The record includes G.C. Exits. 2, 3, 4, and 5 which were submitted, without objection, after the close of the hearing. They are received in evidence. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quality Packers Division, operates a hog abattoir at Sioux City, Iowa. During the calendar year 1975 Respondent purchased goods valued over $50,000 which were shipped directly to its Sioux City plant from points outside Iowa and it distributed from that plant directly to points outside Iowa products valued over $50,000. Respondent is engaged in commerce within the meaning of Section 2(2),(6), and (7) of the Act. B. The Labor Organization The complaint alleges, and Respondent's answer admits, that the Union is a labor organization within the meaning of Section 2(5) of the Act. I so find. The complaint also alleges, and the answer denies, that Respondent took the action it did respecting Means because he had engaged in activities on behalf of the Union. Although it was not named as a party in either of the charges or in the complaint, a copy of the complaint was served on the Union on June 11, 1976. However, it has not entered an appearance nor participate in any way in these proceedings. The Respondent recognizes the Union as the representa- tive of the production and maintenance employees at its Sioux City plant. The Union's International (on behalf of the Union and various other locals as well as the Interna- tional) and Respondent are parties to a master collective- bargaining agreement governing the terms and conditions of the employment of these and other employees of Respondent. This agreement provides for grievance proce- dures, plus a final step of binding arbitration. The agreement was in effect from September 1, 1973, to August 31, 1976. On May 21, 1976, Respondent and the Union agreed, among other things, that a list of 126 grievances, including the 2 involving Means which arose during the life of that contract, "are the only grievances which are subject to Arbitration at this plant under the Master Agreement made September 1, 1973...." The contract grievance procedures include three steps for considering any differences between the Company and the Union or between the Company and employees or between employees themselves because of their union or nonunion affiliation, or "trouble of any kind ... in the plant." Plainly, the contemplated jurisdiction of the grievance machinery is broad enough to treat the alleged unfair labor practices involving Means. If the parties in a grievance fail to reach a settlement in the third step grievance, the Union is empowered under the contract to appeal the grievance to binding arbitration, the final step in the process. The contract also provides that Upon the Union's request any grievance involving the discharge or suspension of an employee which is appealed to arbitration shall be submitted to the arbitrator within 30 days following the date of the "notice of appeal to arbitrator" was forwarded by the Union to the Company. This last step has not been taken by the Union in the Means grievances. The uncontradicted testimony is that the Respondent is awaiting such notice. Although Respondent and the Union have agreed that the grievances are subject to arbitration under the old contract, the Union has notified the Company only that they are in a "pre-arbitra- tion" stage. By mutual assent this is an additional category of pending disputes which have proceeded without resolu- tion through three steps of the grievance machinery and are available for arbitration but have not yet been reached. The arbitrator is empowered by the master agreement, "to make a decision in all cases of alleged violation of the terms of this agreement or of existing company local rate schedules." The arbitrator's decision is final, the agreement providing in this regard, "There shall be no appeal from the arbitrator's decision, which shall be final and binding on the Union and its members, the employees or employee involved and the Company." In case of discharges the agreement gives the arbitrator authority to order a make whole remedy as follows: If an employee is alleged to have been improperly discharged or laid off, the remedy may include rein- statement with or without backpay, or with partial backpay, or may consist of pay or partial pay without reinstatement, or any other redress appropriate to the circumstances. The first discharge of Means (October 11, 1974), which has been through the grievance procedure and is pending arbitration, involves a dispute as to whether he did or did not report for work on October 8, 1974. The second discharge (May 7, 1975), which has also been through the grievance procedures and is awaiting arbitration, involves a dispute as to whether he was insubordinate in leaving his work station on May 6, 1975, or was entitled to leave for personal reasons. Various contract provisions are arguably involved in either dispute. These include, among others, those dealing with normal starting time, rest periods, leaves of absence, sick leave, continous service, guaranteed time, performance of work by supervisors, and management rights. It thus appears that the above aspects of both grievances are arbitrable under the terms of the master agreement. And, as pointed out above, the Union and Respondent have specifically agreed that they have sur- vived the expiration date of the agreement. The agreement forbids discrimination including discrimination because of membership in the Union. The arbitrator would, therefore, have authority to treat issues of discrimination as alleged in the complaint before the Board and, under the contract terms already noted, to award an appropriate remedy. C. Service of the Charge At the beginning of the hearing Respondent moved to dismiss the complaint on the ground that it was bottomed in part on a charge (Case 18-CA-4783) which had not been lawfully served on Respondent. I denied the motion." At the end of the hearing Respondent renewed the motion and I reserved ruling. The charge in Case 18-CA-4783 was filed on November 6, 1975. Copies were mailed that same day, by registered mail, to Respondent's plant in Sioux City, Iowa, and to its then attorney in Phoenix, Arizona. A copy was received at the attorney's office on November 10 and another at Respondent's plant on November 11. The gravamen of the SIOUX QUALITY PACKERS 1037 charge, and that portion of the complaint based on it, is that Respondent unlawfully discharged Means on May 6, 1975. Respondent argues that Section 10(b) of the Act requires "That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made," and that this was not complied with because Respondent did not actually receive a copy of the charge until more than 6 months following the alleged unfair labor practice. I find to the contrary because the charge was both filed and placed in the mail addressed to Respondent, before 6 months had expired following the time of the alleged unlawful event. As provided in Section 102.113 of the Board's Rules and Regulations, the date of the service of the charge is the day on which it was deposited in the United States mails. In this case that was November 6, 1975, which was sufficiently timely to satisfy the require- ments of Section 10(b) of the Act. Accordingly, Respon- dent's renewed motion is denied. D. The Collyer Question At the start of the hearing Respondent also moved to dismiss the complaint on the ground that the alleged unfair labor practices were susceptible of disposition under the grievance and arbitration provisions of the collective-bar- gaining agreement. I denied the motion at that time. At the conclusion of the hearing Respondent renewed the motion and I reserved ruling. After reconsidering the matter I conclude that the Board should defer to the procedures provided in the agreement pursuant to its doctrine set out in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). Means was indefinitely suspended on October 8, 1974, and then discharged on October 11. He immediately filed a grievance over his suspension and discharge. The grievance was processed through the initial two steps of the procedure and by October 14, 1974, was appealed to the third step. Then on November 8, 1974, employee Philip Mossberg and Means, as individuals, filed the unfair labor practice charges against the Respondent in Case 18-CA-4380 claiming that the discharge violated Section 8(a)(3) and (1) of the Act. At the same time they also filed charges against the Union (Case 18-CB-607) claiming, among other things, that the Union was not diligently processing Means' grievance. Some time later those charges against the Union were withdrawn because, according to Means, "They (the Union) showed me proof that they were working on it and moving it, yes, sir." He also testified, "They moved it at that one particular time. They ran all the grievances, including mine, back through second step, and started renegotiations with them and this was proof enough for me." On December 17, 1974, the Regional Director notified the parties in Case 18-CA-4380 (the case against the Company), that, "I am declining to issue a complaint on the instant charge based on my determination that further proceedings on the charge should be administratively deferred for arbitration." He noted various reasons for his deferral including the fact that the Respondent and the Union had notified the Region of their willingness to arbitrate the dispute and that grievances had been filed and were being processed. The Regional Director indicated his intention to periodically review the matter and to revoke his decision to defer and to resume processing of the case if the dispute were not promptly settled or submitted to arbitra- tion. At the end of December 1974 Means was reinstated to his job, but without backpay. The grievance over his discharge and entitlement to backpay remains pending between the Union and the Respondent. He continued in Respondent's employ until May 6, 1975, when he was again suspended and the next day, May 7, discharged. Since then he has not been reinstated. He filed another grievance over this suspension and discharge. By May 15, 1975, that grievance had been appealed to the third step. On August 7, 1975, Respondent acted to decline various pending third step grievances including those involving Means. On November 3, 1975, the Union appealed his grievances to what is referred to by the parties as the "pre- arb" level. Three days later on November 6, 1975, Means filed the charges with the Board in Case 18-CA--4783 based on his May 6 suspension and May 7 discharge. He personally signed these charges, giving his title as "Stewart in union." On December 24, 1975, the Regional Director notified Means and Respondent that he was deferring processing of these charges also, pursuant to Collyer. Then on March 12, 1976, the Regional Director notified the Respondent and the Charging Parties in both cases that he was revoking his decision to defer processing because of "undue delay in the resolution of the grievances .... " The Regional Director noted that although the grievances had been taken to the prearbitration stage, no definite dates had been set for the arbitrations. Although the grievances of Means have not in fact been arbitrated, Respondent and the Union periodically review outstanding grievances, including those at the prearbitra- tion level. On May 21, 1976, such a review occurred. The Respondent and the Union agreed to settle various griev- ances and they listed 126 grievances, including the 2 involving Means, as subject to arbitration under the terms of the master collective-bargaining agreement of September 1, 1973 (which was in effect at the time the incidents occurred). Cf. The Detroit Edison Company, 206 NLRB 898 (1973), where the time limit allowed in the contract for instituting arbitration had expired. Here, by contrast, the grievances are plainly viable. The Respondent argues that the Regional Director erred in revoking his deferrals on the sole basis that arbitration had not taken place. I do not agree. The Regional Director's revocation might well have nudged the parties into holding arbitrations. But whether the Regional Direc- tor acted appropriately is not the question before me. The question now is whether the Board should hold its judicial hand pursuant to its Collyer doctrine. I think it should. Consideration of the problem is complicated by the absence of the Union as a party in this litigation. Still, the Union is not entirely absent. The second of the two charges was signed by Means in his capacity as steward in the Union. The complaint was served on the Union. The record does not show that Means and the Union are at odds with 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each other. Presumably they were at one point , when the initial charges were filed against the Respondent and another set against the Union . But those charges against the Union were withdrawn while the ones against the Respon- dent were not. And the testimony of Means leads one to conclude that he does not now quarrel with the Union's handling of his grievances. Thus, it seems that Means, the individual employee, and the Union, his collective-bargain- ing representative, are in harmony. Certainly there is nothing in this record to indicate the contrary . It seems to me that, absent some showing of disharmony between the two, the individual employee should be left to the remedy available to him through his representative, pursuant to the agreement which that representative negotiated on his behalf with the Employer. All parties, including the employee beneficiaries thereof, ought to live with that agreement. That is the basic teaching of Collyer as applied in Section 8(aX3) cases. See National Radio Company, Inc., 198 NLRB 527,530-532 (1972). The record here shows that the Respondent is willing to arbitrate the matters. Uncontradicted testimony indicates that the agreed on practice under the collective -bargaining agreement is for the Union to give the Respondent notice that certain grievances are to be arbitrated . The Union has not done so in this case and there is no explanation in the record as to why. It may well be in conformity with Means' wishes in keeping the grievances at the "pre-arb" level. As matters stand the Union has an option to carry these matters to arbitration or to have the Board process them. It seems to me that inasmuch as there is no apparent conflict between the aggrieved employee and his union, Respon- dent should have the benefits of its bargain , which in this case is resolution by arbitration. The cases cited by the Respondent support this conclusion . See Columbia Typo- graphical Union No. 101, International Typographical Union of North America, AFL-CIO (Byron S. Adams Printing, Inc.), 207 NLRB 850 (1973), 214 NLRB 27 (1974), 219 NLRB 88 (1975). The present case is not in precisely the same posture as Firestone Steel Products Company, a Division of Firestone Tire & Rubber Company 219 NLRB 492 (1975), relied on by the General Counsel . For one thing the Respondent here, unlike the employer in that case, is willing to arbitrate. Another difference is that the record here indicates that arbitration of the grievances is available and has not been barred by the passage of time. And finally , although the Respondent here seeks dismissal of the complaint, it also requests deferral to arbitration. Given the special circumstances of this case it seems inappropriate to leave in the hands of the employee or his representing union the option to turn the Collyer spigot on or off. The implementation of that policy properly is in the hands of the Board. Accordingly, absent some showing of lack of harmony between the employee and his union, the contracting parties should be left to their agreed-upon method for resolving disputes. Where, as here, the grievance procedures have been used, arbitration is available for final resolution of the disputes, and the Respondent and the Union representing the employee have agreed to submit the disputes to arbitration, the Board ought to defer its decision making to those contract devices. See National Radio Company, Inc., 198 NLRB 527 (1972). Accordingly, Respondent's motion to dismiss based on the Collyer doctrine should be granted. CONCLUSIONS OF LAW 1. The Respondent and the Union have committed themselves, and those they represent, to settle disputes, including those involved in the present matter, through grievance and arbitration pursuant to the provisions of their collective-bargaining agreement. 2. In the circumstances of this case it will effectuate the policies of the Act to respect that commitment and to defer the disputes involved here to the procedures provided in the collective-bargaining agreement. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The complaint herein is dismissed ; provided, however, that: The Board shall retain jurisdiction of this proceeding for the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the disputes have not, with reasonable promptness after the issuance of this Decision, either been resolved by amicable settlement or submitted promptly to arbitration following the grievant's request to arbitrate, or (b) the grievance and arbitration procedures have not been fair and regular or have reached a result repugnant to the Act. IT IS FURTHER ORDERED that a copy of this Decision and Order be served on the Union. 3 In the event no exceptions are filed as provided by Sec. 102.46 of the of the Rules and Regulations, be adopted by the Board and become its Rules and Regulations of the National Labor Relations Board, the findings, findings, conclusions, and Order, and all objections thereto shall be deemed conclusions, and recommended Order herein shall, as provided in Sec. 102.48 waived for all purposes.