United Parcel Service

1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Parcel Service and Leo G. Kohls. Case 9-CA- 9873 March 24, 1977 DECISION AND ORDER On June 15, 1976, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering brief. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only insofar as they are consistent with our decision, infra. The underlying issue is whether the Respondent discharged an employee, Kohls, because he had asserted a right under a collective-bargaining agree- ment to refuse to operate unsafe equipment and thereby violated Section 8(a)(1) of the Act. The Respondent moved that consideration of that issue be deferred pending resolution of the issues involved in Kohls' discharge pursuant to grievance and arbitration provisions in the collective-bargaining agreement. The motion was granted by the Adminis- trative Law Judge. Following the Administrative Law Judge's Deci- sion, a majority of the Board overruled an earlier decision I to defer cases involving individual employ- ee rights protected by Section 7 of the Act to arbitration under contract grievance procedures.2 That decision is controlling here; for the complaint alleges that Kohl was discharged for exercising an individual employee right protected by Section 7. We shall therefore remand this proceeding to the Administrative Law Judge for a hearing and determi- nation on the merits of the allegations of the complaint. ORDER It is hereby ordered that this proceeding be, and it hereby is, remanded to Administrative Law Judge Ralph Winkler for such action as is required in light of our decision not to defer consideration of the issues raised. Members Penello and Walther, concurring: Although we would also remand this proceeding for further hearing, we would do so, not because we find deferral inappropriate in Section 8(a)(1) cases, but because issues of fact were raised which may make deferral inappropriate. Generally, we would defer to the grievance procedure in cases such as this. 228 NLRB No. 136 See our dissent in General American Transportation Corp., supra. Here, however, it is alleged that the Union's interests are opposed to those of the Charging Party. If in fact the Union is hostile to the Charging Party, we would not defer. Kansas Meat Packers, 198 NLRB 543 (1972). It is for these reasons that we would remand. I National Radio Company, Inc., 198 NLRB 527 (1972) (Members Fanning and Jenkins dissenting). 2 General American Transportation Corp., 228 NLRB 102 (1977) (Chair- man Murphy concurring, Members Penello and Walther dissenting). DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge: Upon a charge filed by Leo Kohls, an individual, the General Counsel issued a complaint on February 24, 1976 , to which Respondent filed an answer. The hearing opened on May 11, 1976. After receiving the formal papers and various other documents, but without receiving evidence respecting the merits of the complaint, I ruled on an issue raised in Respondent's answer that further proceedings herein were inappropriate at this time under Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). The General Counsel objected both to this ruling and to a denial of a continuance requested by him. I advised the parties that I would issue a decision on both rulings and that the appeal period would not begin running until such issuance. Upon the record in the case, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT United Parcel Service is an Ohio corporation engaged in the transportation of goods by truck throughout the United States. The parties agree, and I find, that Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 413, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union), is a labor organization within Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES This case involves only the discharge of Charging Party Kohls at Respondent's Columbus, Ohio, terminal on November 26, 1975. The complaint alleges that Respon- dent took such action because Kohls was "asserting his rights under a collective bargaining agreement to not operate unsafe equipment of Respondent" and that Respondent thereby violated Section 8(a)(1) of the Act. Claiming that it discharged Kohls for "cause ," Respondent UNITED PARCEL SERVICE 1061 further moved to dismiss the complaint under the Spiel- berg-Collyerl line of cases upon the claim that Kohls' discharge is cognizable under the grievance procedures of a subsisting contract with the Union. Respondent also asserts in such connection that the Board should accord- ingly direct the parties to handle the Kohls matter under those contract procedures. The parties agree that the aforementioned grievance provisions have been in effect at all relevant times here. These provisions provide for final and binding resolution of grievances by a joint committee and are substantially similar, if not identical, to procedures in contracts that the Board and the Supreme Court have respectively accepted in Spielberg situations and for the purposes of enforcing an award by such joint committee under Section 301. Denver- Chicago Trucking Company, Inc., 132 NLRB 1416 (1961); General Drivers, Warehousemen and Helpers, Local Union No. 89, et al. v. Riss & Co., Inc., 372 U.S. 517 (1963). Thus no party contends that Kohls' discharge was not grievable under the disputes machinery of the Respondent-Union contract; nor is it contended that such contract provisions otherwise fail to meet Spielberg-Collyer standards. The Union, upon notification of Kohls' discharge, promptly invoked the grievance provisions of its contract by filing with Respondent a notice of appeal on December 1, 1975, and it thereby sought Kohls' "reinstatement with full seniority and all monies and benefits lost." Union Business Agent James Kirk also informed Kohls of this appeal filed by Kirk. By letter dated December 8, 1975, Kohls advised the Union that "I disassociate myself from that grievance." The joint grievance committee met on January 19, 1976. The minutes of that meeting show that the joint committee determined the grievance as "with- drawn," in accordance with Kohls' December 8 letter and without addressing the merits of the grievance. On December 1, 1975, Kohls meanwhile filed the charge in the instant case. He also filed an 8(b)(l)(A) charge (Case 9-CB-3117), 2 days later, against the Union alleging restraint and coercion respecting his "rights to engage in concerted activity on behalf of P.R.O.D. (Professional Drivers for Health and Safety).... " The Regional Director advised Kohls on January 30, 1976, that a careful investigation showed there was insufficient evidence of a violation to warrant a complaint in the CB case, and that Kohls could appeal to the General Counsel the refusal to issue a complaint. So far as appears, Kohls did not file an appeal. A. Is the Affected Employee's Acquiescence a Requirement of Deferral Under Collyer? On May 10, 1973, the General Counsel publicly issued a document entitled "Arbitration Deferral Policy under Collyer-Revised Guidelines." These guidelines for Re- gional Office personnel state, in part (at pp. 34-35, fn. 57), that a condition of Collyer applicability is that all parties (the contracting Employer and the Union and the affected employee) acquiesce in deferral to arbitration and that "this `acquiescence' requirement would preclude deferral under the Collyer policy where the individual charging party affirmatively expresses to the regional office his refusal to be bound by, and opposition to, arbitration of the dispute underlying his charge." Kohls having expressed his opposition to the processing of his grievance by "disassociating" himself therefrom, the General Counsel thus contends that the Collyer doctrine is inapplicable and that, without further showing, the operative contract procedures do not bar the processing of Kohls' unfair labor practice charge against Respondent United Parcel in the instant case. What this means is that in the General Counsel's view an alleged discriminatee covered by a contract providing for final and binding arbitration of his discharge may ignore the underlying policy of Collyer by objecting to such arbitration for any reason or for no reason at all. Considering the present development of Spielberg-Col- lyer principles, it would appear unnecessary, even presump- tuous, to use this decision as a vehicle for restating the statutory and judicial considerations underlying the defer- ral doctrine. They are spread out for all to read in those and succeeding cases. As an original proposition I would consider the General Counsel's position as inconsistent with and permitting a circumvention of the deferral doctrine. But it is not a novel matter, for the Board has already stated in this connection, "That employees, as well as the Employer and the Union, are bound by the bargaining agreement is fundamental to collective bargain- ing." McLean Trucking Co., 202 NLRB 710, 712, fn. 5 (1973), reversed on other grounds sub nom. Banyard v. N.L.RB., 505 F.2d 342 (C.A.D.C., 1974); Great Scott Supermarkets, Inc., 206 NLRB 447,453 (1973). ("Addition- ally, it would seem to thwart the Board policy which Collyer has established to permit individual alleged discriminatees to refuse to go to arbitration where the contract between their bargaining representative and their employer provides for the same merely because the individuals involved have some imagined grievance against the Union.") In addition to the Steelworkers trilogy and other judicial authorities discussed in the Board's Collyer decision, see Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-653 ("As a general rule in cases to which federal law applies, federal labor policy requires that individual employees wishing to assert contract grievances must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress... . A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it."); cf. Black-Clawson Co., Inc., Paper Machine Division v. International Association of Machinists, Lodge 335, District 137, et al., 313 F.2d 179 (C.A. 1, 1962). I accordingly conclude that the mere refusal by an affected employee to go to arbitration under appropriate contract procedures is insufficient, without more, to preclude deferral under Spielberg-Collyer policy. 1 Spielberg Manufacturing Company, 112 NLRB 1080 (1955); Collyer Insulated Wire, A Gulf and Western System Co, 192 NLRB 837 (1971). 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Denial of a Continuance After advising the parties that I would grant Respon- dent's motion to defer further action herein until Kohls' discharge be processed under the aforementioned contract procedures, the General Counsel requested that the hearing be continued . The stated purpose of the requested continuance was, in effect, to enable the General Counsel to investigate and then submit evidence at a later date that the Union was purportedly hostile to Kohls and that deferral under Collyer was thus inappropriate under Kansas Meat Packers, 198 NLRB 543 (1972). Asserting that it had raised the Collyer-Spielberg contention in its answer filed well before the hearing, the Respondent contended that it was untimely for the General Counsel to inject a Kansas City issue for the first time at the hearing and then to request a continuance for such purpose , and Respondent also referred to the dismissal by the Regional Office of the aforementioned CB charge against the Union. I denied the continuance, and I also rejected an offer thereupon made by the General Counsel to call a witness in support of his Kansas City contention. The reason for refusing to hear testimony sought to be adduced by the General Counsel in support of the Kansas City contention was that I considered it unfair to receive such evidence, without prior notice to the Union 2 (as well as to Respondent), particularly in view of the fact that such proffered testimony might spill over into the area covered by the dismissed CB charge and could possibly result in reviving such charge. The Kansas City principle is, needless to say, an important safeguard in the administration of the Spielberg- Collyer deferral doctrine, too important to be rejected for procedural niceties. However, the Union and the Respon- 2 The Union was not a party to this proceeding. 3 In the event no exceptions are filed as provided by Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and the recommended Order herein shall, as provided in Sec. dent also should be protected in their procedural rights. I accordingly believe that Kohls' discharge should be handled under the aforementioned contract provisions, but that the procedural fairness of the Joint Committee' determination may still be tested under Kansas City considerations, should the General Counsel be persuaded that a purported hostility of the Union to Kohls was such as to make it unfair to defer to the then completed arbitral process. Spielberg (postarbitral), as well as Collyer (prearbi- tral), situations must satisfy Kansas City standards. (See Banyard v.N.LRB, supra; International Harvester Co., 138 NLRB 923, 927 (1962), stating that the Board will not defer to the arbitral process where it "clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act.") Upon the foregoing findings and conclusions, and the record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDERS The complaint is dismissed except that jurisdiction is retained for the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that (a) the dispute as to Kohls' discharge has not been submitted promptly to resolution under contract procedures, or (b) the dispute has not been resolved by such procedures or the final determination thereunder is not wholly dispositive of the issues in this case , or (c) the mentioned contract procedures have not been fair and regular or have reached a result repugnant to the Act. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.