United Beef Co., Inc.

66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Beef Co., Inc. and Roberto Rodriguez Case 1-CA-21444 18 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed 14 October 1983 by Roberto Rodriguez (the Charging Party), the General Counsel of the National Labor Relations Board issued a complaint 29 December 1983 against United Beef Co, Inc, the Respondent, alleging that it has violated Section 8(a)(1) and (3) of the National Labor Relations Act The complaint alleges that since February 1983 and at previous times the Respondent harassed Ro- driguez, the union shop steward, by vulgar lan- guage and personal vilification when he was processing grievances under the parties' collective- bargaining agreement and that the Respondent dis- charged Rodriguez on 13 July 1983 because of his protected concerted activity On 6 January 1984 the Respondent filed its answer admitting in part and denying in part the allegations in the com- plaint On 13 April 1984 the Respondent filed a motion to transfer to the Board and to dismiss complaint and notice of hearing, which we shall treat as a Motion for Summary Judgment, a supporting memorandum, and supporting attachments On 18 April 1984 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted On 23 April 1984 the Charging Party filed an opposi- tion to the Respondent's motion On 11 June 1984 the General Counsel filed a response to the Notice to Show Cause and on the same day the Respond- ent filed a supplemental memorandum in support of its motion and a response to the Notice to Show Cause On 14 June 1984 the Respondent submitted a letter to the Board in further response to the General Counsel's response to the Notice to Show Cause The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Ruling on Motion for Summary Judgment In its motion, supporting memorandum, support- ing documents, and supplemental memorandum, the Respondent contends, inter aim, that the unfair labor practice allegations in the complaint should be deferred to the grievance-arbitration procedure contained in the parties' collective-bargaining agreement because the Union initially filed a gnev- ance over the Charging Party's discharge, the dis- pute is cognizable under the contractual grievance- arbitration procedure, the Respondent is willing to arbitrate the dispu.e, and the nature of the violation alleged does not constitute rejection of the princi- ples of collective bargaining so as to make deferral inappropriate The Respondent argues that the in- stant case is controlled by the Board's recent deci- sion in United Technologies Corp, 268 NLRB 557 (1984) In his response to the Notice to Show Cause the General Counsel argues that deferral is inappropri- ate because the Union withdrew from the arbitra- tion process, which action left the Charging Party without representation The General Counsel as- serts that in these circumstances the Charging Party is blameless for the failure of the contractual grievance procedure to resolve the dispute and that deferral would deny him the right to seek redress for a statutory wrong In his opposition to the Re- spondent's motion the Charging Party argues that a hearing on the merits is required because the facts in this case are "vigorously disputed", that other unfair labor practice charges are pending which can be resolved only after a determination as to whether the Charging Party's discharge was an unfair labor practice, and that individual employees such as the Charging Party herein cannot compel arbitration of a grievance if the Union does not wish to proceed As set forth above, the complaint alleges that the Respondent harassed the Charging Party, the shop steward, by vulgar language and personal vilifica- tion while the Charging Party was engaged in processing grievances under the collective-bargain- ing agreement and that the Respondent discharged him for his protected concerted activity The rele- vant facts alleged by the Respondent and not dis- puted by the General Counsel are as follows The Charging Party was discharged on 13 July 19831 following a confrontation with the plant manager on the shop floor in which the latter accused the Charging Party of spitting at him in the course of an argument On the same day the Union submitted a demand for arbitration under the parties' collec- tive-bargaining agreement 2 The dispute was ongi- ' All dates are in 1983 unless otherwise indicated 2 The Respondent and the Union were parties to a collective bargain- ing agreement which was effective from 1 September 1980 through 31 August 1983 Thereafter, the parties entered into a successor agreement effective from 21 September 1983 through 1 October 1986 Both con tracts contain an identical grievance arbitration clause, which provides All grievances pertaining to the meaning, interpretation, or appli cation of the provisions of this Agreement, on the part of any em ployee or the Union, arising in any place of business or establishment of a member of the Association, which cannot be adjusted between each such member of the Association and a Union representative Continued 272 NLRB No 7 UNITED BEEF CO 67 nally scheduled to be heard before the industry ar- bitrator on 28 July However, on that date the par- ties agreed that the arbitrator should consider first the cases of about 100 employees who were dis- charged for engaging in a strike on 13 July follow- ing the discharge of the Charging Party Thereaf- ter, the arbitrator issued his decision in those cases sustaining the discharges On 4 October the Charging Party filed the charge in this case alleging that he was discharged because of his union activities in violation of Sec- tion 8(a)(1) and (3) On 4 November the Regional Director sent a letter to the Union's counsel stating that he had decided to administratively defer fur- ther proceedings on the charge under Dubo Mfg Corp, 142 NLRB 431 (1963) By letter dated 22 November, the Union's counsel advised the Re- gional Director that the Union would not process the Charging Party's case to arbitration, and he argued that deferral was not appropriate The com- plaint alleging the Charging Party was unlawfully discharged issued on 29 December By letter dated 10 February 1984 to the Regional Office the Re- spondent indicated its willingness to have the dis- pute concerning the Charging Party's discharge re- solved through the contractual grievance-arbitra- tion procedure On 13 April 1984 the Respondent filed the instant motion On 8 June 1984 the Re- spondent sent a letter to the industry arbitrator seeking the scheduling of a hearing date on the Charging Party's discharge, and on 11 June 1984 the Respondent sent a letter to the Board in which it reaffirmed its desire to arbitrate the dispute in ac- cordance with the terms of the collective-bargain- ing agreement In its motion the Respondent argues that deferral of the instant matter to the parties' grievance-arbi- tration machinery is appropriate under the stand- ards established in United Technologies Corp, 268 NLRB 557 (1984), because, inter aim, the dispute is cognizable under the applicable provisions of the collective-bargaining agreement, the Respondent is willing to proceed to arbitration, and the Respond- within seventy-two (72) hours shall be referred for arbitration to Mr Mark Santer, as arbitrator The decision of the arbitrator shall be final and binding upon both parties The expense of the arbitrator shall be paid equally by both parties The decision of the arbitrator shall be rendered within five (5) days after the close of the arbitration hearing The contract further provides There shall be no discrimination, interference, restraint or coercion by the members of the Association, any of their servants or agents, against any member of the Union because of membership in the Union or because of any Union activity, It being agreed that no em ployee of said members of the Association shall engage in Union ac- tivity during working hours, and the Union agrees that It its serv ants, agents or members, will not interfere, restrain, coerce or dis criminate against any employee who is not a member of the Union ent's alleged misconduct does not constitute a re- jection of the principles of collective bargaining For the reasons set forth below we agree with the Respondent that the unfair labor practice allega- tions in the complaint should be deferred to the contractual grievance-arbitration procedure In United Technologies, supra, the Board rede- fined its policy of encouraging the use of arbitra- tion as a preferred method for resolving labor-man- agement disputes In that case the Board an- nounced that it would defer the exercise of its ju- risdiction to the arbitral process in cases involving allegations of 8(a)(1) and (3) violations Under the United Technologies standard, deferral is appropri- ate where the parties' collective-bargaining agree- ment contains a grievance-arbitration clause, the parties have voluntarily invoked the grievance ma- chinery, and there is a reasonable belief that the grievance-arbitration process will resolve the dis- pute in a manner consistent with Spielberg 3 The Board stated It is fundamental to the concept of collec- tive bargaining that the parties to a collective- bargaining agreement are bound by the terms of their contract Where an employer and a union have voluntarily elected to create dis- pute resolution machinery culminating in final and binding arbitration, it is contrary to the basic principles of the Act for the Board to jump into the fray prior to an honest attempt by the parties to resolve their disputes through that machinery For dispute resolution under the grievance-arbitration process is as much a part of collective bargaining as the act of ne- gotiating the contract In our view, the statu- tory purpose of encouraging the practice and procedure of collective bargaining is ill-served by permitting the parties to ignore their agree- ment and to petition this Board in the first in- stance for remedial relief 4 This approach was recently applied in General Dynamics Corp, 271 NLRB 187 (1984), where the Board deferred further processing of an 8(a)(3) complaint alleging the suspension of a union stew- ard In that case, the charging party filed griev- ances over his suspensions in accordance with the applicable provisions of the collective-bargaining agreement After pursuing the grievances through four of the five steps of the grievance procedure but prior to arbitration, the charging party volun- tarily withdrew from the grievance procedure and sought remedial relief before the Board The Board 3 Spielberg Mfg Co, 112 NLRB 1080 (1955) 4 United Technologies, supra, 268 NLRB at 559 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concluded that deferral was appropriate under United Technologies because there was no showing that the grievance-arbitration procedure was unfair or would produce a result repugnant to the Act and that to permit withdrawal from the grievance procedure in midstream would be contrary to the teaching of United Technologies. Applying these principles to the facts of this case, we find that deferral to the grievance-arbitra- tion procedure is appropriate. As set forth above, the contractual grievance machinery was invoked by the Union, a party to the contract. The Union and the Respondent had agreed on a date for a hearing before the industry arbitrator, and it was only after the Union received unfavorable rulings from the arbitrator on other matters that it decided to withdraw from the arbitration procedure in the instant case. To permit such withdrawal in circum- stances where the Respondent is willing to proceed and absent any showing that the arbitral process or result would be repugnant to the Act is clearly contrary to the principles of United Technologies. The Respondent's alleged conduct at issue here is not inimical to the principles of collective bargain- ing or to the grievance-arbitration process itself" and there is no showing that the interests of the Union are adverse to those of the individual on whose behalf the Union filed the grievance. The foregoing facts show that the instant dispute is eminently well suited for deferral to arbitration. It involves 8(a)(1) and (3) allegations that the Re- spondent harassed and discharged the Charging Party for engaging in union activity. The dispute is clearly cognizable under the broad grievance-arbi- tration provision of the collective-bargaining agree- ment, and the Respondent has repeatedly expressed its willingness to resolve the dispute in accordance with the parties' contractual grievance-arbitration machinery. In these circumstances we believe that it would best effectuate the purposes and policies of the Act to defer this case to the arbitral forum. Accordingly, we shall grant the Respondent's Motion for Summary Judgment, defer further pro- ceedings in this case to the parties' grievance-arbi- 5 In this regard we note that the complaint alleges in part that the Re- spondent violated Sec 8(a)(1) by harassing the Charging Party in the course of his processing of grievances under the collective-bargaining agreement However, as in United Technologies, where the dispute also arose in the context of processing grievances, the Respondent's alleged misconduct "does not appear to be of such character as to render the use of [the grievance-arbitration] machinery unpromising or futile United Aircraft Corp, 204 NLRB 879 (1973). As indicated, the record shows that the parties initially set an arbitration hearing date in this matter and thereafter agreed to a postponement so as to permit the arbi- trator to hear other grievances Thus, as in United Technologies, the par- ties to the contract have "demonstrate[d] full acceptance of the grievance and arbitration route to the resolution of disputes" Community Convalescent Hospital, 199 NLRB 840, 841 fn 2 (1972) tration procedure, and order that the complaint be dismissed." On the basis of the entire record, the Board makes the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT United Beef Co., Inc., a Massachusetts corpora- tion, maintains an office and place of business in Boston, Massachusetts, where it is engaged in the processing, sale, and distribution of meat and meat products. Annually the Respondent, in the course and conduct of its business operations, received at its Boston, Massachusetts plant goods valued in excess of $50,000 directly from points outside Mas- sachusetts, and it sold and shipped from its plant in Boston, Massachusetts, products valued in excess of $50,000 to meat distributors located outside the Commonwealth of Massachusetts. We find, on the basis of the foregoing, that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED United Food and Commercial Workers Union, Local 592, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. CONCLUSIONS OF LAW The unfair labor practice allegations in the com- plaint should be deferred to the grievance-arbitra- tion procedure established by the parties' collec- tive-bargaining agreement. ORDER The Respondent's Motion for Summary Judg- ment is granted and the complaint is dismissed, provided that: Jurisdiction of this proceeding is retained for the limited purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Decision and Order, either been resolved by amicable settlement in the grievance procedure or 6 As in United Technologies, however, we shall retain jurisdiction of this proceeding for the limited purpose of entertaining an appropriate and timely motion for further consideration on a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Decision and Order, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act UNITED BEEF CO 69 submitted promptly to arbitration, or (b) the griev- and regular or have reached a result which is re- ance or arbitration procedures have not been fair pugnant to the Act