August A. Busch & Co.

National Labor Relations Board - Board Decisions

Nov 30, 1992

309 N.L.R.B. 714 (N.L.R.B. 1992)

714
309 NLRB No. 111
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 On April 28, 1992, Administrative Law Judge Bernard Ries
issued the attached decision. The Respondent, the General Counsel,
and the Charging Party Union each filed exceptions and a supporting
brief. The General Counsel and the Charging Party also filed briefs
in support of the judge’s decision.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
3 We adopt the judge’s finding for the reasons stated by him that
the Respondent violated Sec. 8(a)(5) by refusing to furnish to the
Union the requested information.
4 The Board rejected the motions without prejudice to the Re-
spondent’s right to renew its request before the administrative law
judge. 5 All dates hereinafter are in 1989 unless otherwise indicated.
August A. Busch & Co. of Massachusetts, Inc. and
Teamsters Local Union No. 122 a/w Inter-
national Brotherhood of Teamsters, AFL–
CIO.1 Cases 1–CA–26475 and 1–CA–27080
November 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issues presented in this case are whether certain
unfair labor practice complaint allegations should be
deferred to the grievance-arbitration procedures con-
tained in the parties’ collective-bargaining agreement
pursuant to the principles of United Technologies
Corp., 268 NLRB 557 (1984), and Collyer Insulated
Wire, 192 NLRB 837 (1971), and whether the Re-
spondent unlawfully refused to furnish information re-
quested by the Union in connection with the Respond-
ent’s decision to implement a mandatory drug testing
program.2
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order and to adopt the recommended Order
as modified.3
The complaint in Case 1–CA–26475 alleges that the
Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with the Union about ‘‘plant
safety issues and other health and safety matters affect-
ing wages, hours, and working conditions of bargain-
ing unit employees.’’ In defense, the Respondent as-
serted in its answer and in motions for summary judg-
ment filed with the Board before the hearing, that the
case should be deferred to the grievance-arbitration
procedure contained in the parties’ collective-bargain-
ing agreement.4 The judge rejected the request for de-
ferral, proceeded to consider the merits, and found that
the Respondent violated Section 8(a)(5) and (1) as al-
leged. The Respondent excepts, inter alia, to the
judge’s failure to defer the case to the contractual
grievance-arbitration procedure. For the reasons set
forth below, we find merit in the Respondent’s excep-
tion.
The Respondent operates a wholesale beer distribu-
torship in Medford, Massachusetts, where, since 1967,
it has recognized the Union as the bargaining rep-
resentative of the truckdrivers, warehousemen, and
helpers employed by the Respondent. Since that time
the parties have negotiated a series of collective-bar-
gaining agreements, the most recent of which was ef-
fective from December 1, 1988, through November 30,
1991.
The contract contains a broad grievance-arbitration
procedure which provides in article VII that:
The Union or any individual employee or group
of employees shall have the right to present griev-
ances relating to the interpretation of the terms of
this Agreement to the Employer, and to have such
grievances adjusted as provided in the Labor-
Management Relations Act of 1947, as amended.
Section 3 of the article provides for the submission of
the grievance to arbitration at the election of the Re-
spondent or the Union if a settlement is not satisfac-
torily reached at the second step, and section 5 states
that the arbitrator’s decision is final and binding but
that it may not ‘‘amend, modify, alter or add to any
term of this Agreement.’’ The contract also contains
the following provision:
ARTICLE XXII
HEALTH - SAFETY - WORKING CONDITIONS
The Company and the Union agree to institute a
committee to review issues relating to:
1. health and safety
2. working conditions as affected by the so-
called ‘‘Bottle Bill.’’
Such committee shall meet no less than month-
ly, unless otherwise agreed. It is agreed by the
parties that every effort will be made to correct
those items or situations which the committee
deems necessary.
In January 1989,5 1 month into the term of the new
3-year contract, an employee in the bargaining unit
was killed in a forklift accident. Following an inves-
tigation and issuance of citations against the Respond-
ent by the Occupational Safety and Health Administra-
tion (OSHA) stemming from the accident, the Union,
by letter dated June 7, served on the Respondent a
‘‘demand for negotiations over plant safety issues and
other health and safety matters, affecting wages, hours
and working conditions of bargaining unit employees.’’
The Respondent replied 2 days later by inquiring as to
‘‘precisely what matters you would want to negotiate
715AUGUST A. BUSCH & CO.
6 In this regard, the Union specified four safety issues that, it be-
lieved, fit those categories and for which it was, therefore, not re-
questing bargaining.
7 281 NLRB 304 fn. 2 (1986).
8 As noted above, the Union has represented the Respondent’s unit
employees since 1967.
9 Cf. Kenosha Auto Transport Corp., 302 NLRB 888 fn. 2 (1991)
(deferral inappropriate in light of 8(a)(3) and independent 8(a)(1) al-
legations).
10 Contrary to the contentions of the General Counsel and the
Union, we do not find the Respondent’s contractual defense ‘‘so
plainly lacking in merit as not even to raise a colorable claim.’’ See
Continued
which either are not already comprehended in the con-
tract or were not discussed during the course of collec-
tive bargaining for the last Agreement.’’ On June 15,
the Union responded by assuring the Respondent that
it was not seeking to negotiate about health and safety
issues ‘‘already comprehended in the contract’’ or
about matters that were discussed ‘‘during the course
of collective bargaining for the last Agreement.’’6
Rather, as a result of the fatal injury described above
and OSHA’s related findings of safety violations, the
Union explained that it was ‘‘prompted . . . to seek ne-
gotiations with respect to worker safety and health in
the warehouse operations, truck loading and unloading,
truck driving, delivery procedures and training and in-
struction of bargaining unit employees and safety com-
mittee members.’’ The Respondent replied on June 19
by stating its belief ‘‘that all issues which you raise
can be referred to the contractually established joint
management and labor safety committee for resolution
set forth in Article XXII.’’ Accordingly, the Respond-
ent informed the Union that it saw ‘‘no reason . . . to
negotiate these issues separately when there is already
in place a contractual mechanism for decision of any
outstanding safety dispute.’’
On these facts the judge concluded that the present
controversy was not appropriate for deferral to the
grievance-arbitration machinery of article VII because
that article provides only that the Union or employees
‘‘shall have the right to present grievances relating to
the interpretation of the terms of this Agreement.’’
(Emphasis added.) The ‘‘unmistakably clear’’ meaning
of this language, according to the judge, is that the
processing of complaints through the grievance proce-
dure is optional and does not compel the use of that
procedure to resolve disputes. Citing Arizona Portland
Cement Co.,7 the judge concluded that the instant
‘‘matter is not one properly subject to deferral under
Collyer Insulated Wire . . ., as there is no contract in
existence under which the parties are mutually bound
by an agreed-upon grievance-arbitration procedure.’’
Contrary to the judge, we find no support in Arizona
Portland for his finding. In that case, the Board de-
clined to defer, not because of the absence of binding
language in a grievance-arbitration clause, but because
of the absence of an existing contract.
Nor does the Collyer doctrine, as it has evolved,
support the judge’s conclusion. In United Tech-
nologies, 268 NLRB 557 (1984), the Board reaffirmed
the principles of prearbitral deferral articulated in
Collyer and stated that deferral is appropriate when the
following conditions are satisfied: the dispute arose
within the confines of a long and productive collective-
bargaining relationship; there is no claim of employer
animosity to the employees’ exercise of protected
rights; the parties’ contract provided for arbitration in
a very broad range of disputes; the arbitration clause
clearly encompasses the dispute at issue; the employer
has asserted its willingness to utilize arbitration to re-
solve the dispute; and the dispute is eminently well
suited to such resolution. Id. at 558.
Applying these factors to the present case, we find
this case is suitable for deferral. Thus, the Respondent
and Union have had a productive collective-bargaining
relationship for many years,8 and it is undisputed that
the dispute arose within the confines of that relation-
ship. Second, there is no evidence or allegation of em-
ployer animosity towards the employees’ exercise of
protected rights.9 Further, the Respondent has ex-
pressed its willingness to utilize the grievance-arbitra-
tion process to resolve the dispute.
Finally, the third and fourth factors are clearly
present in this case. The arbitration clause is broad and
it encompasses the instant dispute. Under the parties’
agreement, a grievance can be filed with respect to
matters ‘‘relating to the interpretation of the terms of
this Agreement.’’ Further, any grievance can be
brought to arbitration. Thus, if the dispute involves the
interpretation of terms of the agreement, the dispute
can be subjected to arbitration.
It is clear that the instant dispute relates to the inter-
pretation of the terms of the contract. The Respond-
ent’s refusal to engage in midterm negotiations over
health and safety matters is based on its interpretation
of the contract, i.e., that the parties intended that safety
matters be submitted to and resolved through the joint
labor-management safety committee established in arti-
cle XXII of the contract. The General Counsel and the
Union argue that neither article XXII nor any other
contract provision could be interpreted as authorizing
the Respondent’s refusal to negotiate. Specifically,
they assert that article XXII provides for a joint-labor
management committee which can only review health
and safety issues, but has no power to negotiate over
those subjects, and does not require the Respondent to
implement any committee recommendations.
Accordingly, we find, in agreement with the Re-
spondent, that the dispute turns on an interpretation of
article XXII. The Board has long held that, in these
situations, the dispute is eminently well suited to reso-
lution through the arbitration process.10 See, e.g.,
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ram Construction Co., 228 NLRB 769, 774 (1977). See also Blue
Cross Blue Shield, 286 NLRB 564 (1987).
Further, for the reasons stated by the judge, we reject their conten-
tion that deferral would lead to a bifurcated or ‘‘two-tiered’’ arbitra-
tion procedure which the Board seeks to avoid. See American Na-
tional Can Co., 293 NLRB 901 (1989).
11 We note that in Jos. Schlitz Brewing Co., 175 NLRB 141
(1969), relied on in Collyer, the Board found deferral appropriate
even though there was no specific finding that the parties were con-
tractually required to process grievances through the grievance-arbi-
tration procedure and even though the charging party union had cho-
sen to file an unfair labor practice charge with the Board rather than
to file a grievance. Neither the Board nor the trial examiner quoted
the exact language of the grievance-arbitration clause. Both simply
noted that the collective-bargaining agreement ‘‘provide[d]’’ a griev-
ance-arbitration procedure for the settlement of all differences over
the interpretation of contractual clauses. Id. at 141, 143. The Board
found it merely ‘‘interesting to note’’ that a union steward had filed
a grievance over the disputed matter because he was ‘‘unaware that
the Union had already filed an unfair labor practice charge’’ and that
the ‘‘grievance was never processed.’’ Id. at 142 fn. 1.
Collyer, supra, Roy Robinson Chevrolet, 228 NLRB
828, 830 (1977); Southwestern Bell Telephone Co.,
198 NLRB 569, 570 (1972); and Urban W. Patman,
197 NLRB 1222 (1972).
Concededly, the contract does not obligate either
party to resort to the grievance-arbitration machinery.
However, as discussed above, it is the availability of
that machinery which triggers the deferral doctrine.
Where, as here, the dispute is cognizable by the griev-
ance-arbitration machinery, and the other factors favor-
ing deferral are present, the Board’s policy is to hold
the unfair labor practice case in abeyance, pending re-
sort to the machinery. In Western Electric, 199 NLRB
326 (1973), affd. sub nom. Electrical Workers IBEW
Local 2188 v. NLRB, 494 F.2d 1087 (D.C. Cir. 1974),
cert. denied 419 U.S. 835 (1974), the trial examiner
found that the arbitration clause, which provided that
either party to the contract ‘‘may’’ refer disputes to an
arbitrator, precluded deferral under Collyer because the
contract did not mutually bind both parties to submit
contractual disputes to arbitration. The Board reversed,
noting that under the terms of the contract ‘‘a dispute
is arbitral, upon request, after the exhaustion of the
earlier steps of the grievance procedure, and the use of
the term ‘may’ merely refers to the option to request
or not request arbitration.’’ 199 NLRB at 326 fn. 3.
We recognize that, in Western Electric, resort to arbi-
tration was optional, whereas, in the instant case, resort
to the grievance procedure is optional. The rationale is
equally applicable, however. So long as an adequate
contractual grievance procedure culminating in binding
arbitration is available to the party seeking a Board ad-
judication and the other Collyer criteria are met, the
policies underlying Collyer counsel against allowing
the complaining party to avoid using that procedure,
regardless of whether it seeks to avoid it at the outset
or at the step just preceding arbitration.11
Accordingly, we believe that deferral of the allega-
tions set forth in Case 1–CA–26475 to the contractual
grievance-arbitration mechanism would best effectuate
the purposes and policies of the Act, and we shall so
order.
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge as
modified below and orders that the Respondent, Au-
gust A. Busch & Co. of Massachusetts, Inc., Medford,
Massachusetts, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Refusing to bargain collectively with Teamsters
Local Union No. 122, a/w International Brotherhood of
Teamsters, AFL–CIO, by refusing upon request to sup-
ply relevant information needed by the Union to per-
form its duties as collective-bargaining representative
of the employees in the unit consisting of drivers,
helpers, and warehousemen at its Medford, Massachu-
setts facility.’’
2. Delete paragraph 2(b) and reletter the subsequent
paragraphs accordingly.
3. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that the complaint in Case
1–CA–26475 is dismissed, provided that:
Jurisdiction of this proceeding is retained 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 rea-
sonable 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 proce-
dures have not been fair and regular or have reached
a result that is repugnant to Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that
we violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Teamsters Local Union No. 122, a/w International
Brotherhood of Teamsters, AFL–CIO, by refusing to
supply, on request, relevant information needed by the
Union to represent the employees covered under its
contract with us.
717AUGUST A. BUSCH & CO.
1 The charge in Case 1–CA–26475, was filed on June 26, 1989,
and a complaint was issued in that case on August 16, 1989. The
charge in Case 1–CA–27080 was filed on February 16, 1990, and
a complaint was issued on February 14, 1991. An order consolidat-
ing the cases for hearing was issued on February 14, 1991, as sup-
plemented on August 26, 1991.
2 The answers agree, however, that the Respondent has been at all
pertinent times an employer engaged in commerce within the mean-
ing of Sec. 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Sec. 2(5) of the Act.
3 Errors in transcript have been noted and corrected.
4 All dates in this section refer to 1989.
5 Domesick was the only witness in this proceeding.
6 Art. XXII of the 1988–1991 agreement, entitled ‘‘Health-Safety-
Working Conditions,’’ provided, as did the preceding agreements,
for the creation of a labor-management committee to ‘‘review issues
relating to: 1. health and safety 2. working conditions, as affected
by the so-called ‘Bottle Bill.’’’ The article provided for monthly
meetings, unless otherwise agreed, and further stated the intention of
the parties that ‘‘every effort will be made to correct those items or
situations which the committee deems necessary.’’ The record is si-
lent as to the history of the committee, although an August 16 letter
from Respondent, see infra, indicates that such a committee did not
then exist. On brief, the Charging Party represents that ‘‘[t]his com-
mittee has met only sporadically, and not at all for at least five or
six years.’’
7 The grievance-arbitration clause (art. VII) of the agreement is
specific in its application: ‘‘The Union or any individual employee
or group of employees shall have the right to present grievances re-
lating to the interpretation of the terms of this Agreement to the Em-
Continued
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL furnish, on request by the Union, informa-
tion as required by the decision of the Board.
AUGUST A. BUSCH & CO. OF MASSA-
CHUSETTS, INC.
Thomas J. Morrison, Esq., for the General Counsel.
Arthur P. Menard, Esq. and John Reardon, Esq. (Law Firm
of Arthur P. Menard), of Chelsea, Massachusetts, for the
Respondent.
Stephen R. Domesick, Esq., of Boston, Massachusetts, for the
Charging Party.
DECISION
BERNARD RIES, Administrative Law Judge. This matter
was heard in Boston, Massachusetts, on October 23, 1991.1
The consolidated complaint presents two allegations. The
first is that since on or about June 19, 1989, the Respondent
has unlawfully refused to negotiate with the Union about var-
ious matters relating to health and safety, thereby violating
Section 8(a)(5) and (1) of the National Labor Relations Act.
The second is that the Respondent, since on or about January
30, 1990, has unlawfully refused to furnish certain informa-
tion to the Union, also in violation of Section 8(a)(5). The
answers to the consolidated complaints deny material sub-
stantive allegations contained therein.2
Briefs were filed by all parties on or about January 17,
1991. Having carefully considered the briefs and the entire
record, I have reached the following findings of fact,3 con-
clusions of law, and recommendations.
I. BASIC FACTS RELATED TO CASE 1–CA–26475
The Respondent operates a facility in Medford, Massachu-
setts, where it engages in the wholesale distribution of beer.
Since 1967, the Respondent has recognized the Union as the
exclusive bargaining representative of its drivers, helpers,
and warehousemen at the Medford location. Although the
record indicates that the parties have negotiated a succession
of bargaining agreements since 1967, the only agreements in
evidence are the ones executed for the periods December 1,
1982–November 30, 1985, December 1, 1985–November 30,
1988, and December 1, 1988–November 30, 1991.
In January 1989,4 a bargaining unit employee was killed
when a forklift truck fell on him. On June 7, after an Occu-
pational Safety and Health Administration investigation and
the issuance of citations against Respondent, an official of
the Union wrote to the Respondent, making reference to the
accident and the OSHA citations and serving a ‘‘demand for
negotiations over plant safety issues and other health and
safety matters, affecting wages, hours and working condi-
tions of bargaining unit employees.’’ By letter dated June 9,
Arthur Menard, counsel for Respondent, inquired as to the
identity of the matters the Union wished to negotiate which
‘‘either are not already comprehended in the contract or were
not discussed during the course of collective bargaining for
the last agreement.’’ The letter ended, ‘‘Please understand
that we are not refusing to reopen, but merely require more
specificity before we can answer your request.’’
On June 15, Stephen Domesick, the Union’s counsel,
wrote to Menard, renewing the request to bargain; stating
that the Union’s proposed discussion did not contemplate
subjects already comprehended by the contract or meaning-
fully discussed during its negotiation; and conceding, accord-
ingly, that Respondent might properly decline to bargain
about ‘‘defective fork lifts, open pallets on end-loader trucks,
case load limitations up stairs, the stacking of empty barrels
on trucks and graduated stops.’’ The letter went on to specify
the proposed subjects of bargaining: ‘‘worker safety and
health in the warehouse operations, truck loading and unload-
ing, truck driving, delivery procedures and training and in-
struction of bargaining unit employees and safety committee
members.’’ Union Attorney Domesick testified that, ‘‘to [his]
recollection,’’ no safety issues were discussed during nego-
tiations for the 1988–1991 contract other than the ones speci-
fied in his letter as not being subject to current bargaining.5
The June 19 reply by Menard stated Respondent’s belief
that the issues raised by the Union could be referred to a
contractually established committee for resolution.6 Menard
further stated that if the Union was dissatisfied with the re-
sults of the suggested approach ‘‘or still believes it has a
grievable issue relative to safety, of course, the Company
would be willing to arbitrate such an issue. Moreover, if the
Union is of the view that the Company is incorrect in its
judgment that such matters should be referred to the safety
committee, then, of course, the Company would be willing
to arbitrate the dispute over the propriety of the referral of
such matters to that committee.’’ Menard finished by stating
that he saw no reason to ‘‘negotiate these issues separately
when there is already in place a contractual mechanism for
discussion of any outstanding safety dispute.’’7
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployer . . . .’’ The penultimate sentence in the procedure states, in
part, that ‘‘the Arbitrator shall have no power to amend, modify,
alter or add to any term of this Agreement.’’
It may also be noted at this point that art. XXV of the agreement,
after reciting its term, states that the agreement ‘‘shall not be re-
opened by either party for any reason whatsoever . . . .’’
8 Compare the relevant clauses in Collyer, 192 NLRB at 839:
[T]he grievance machinery ‘‘shall be adopted for any complaint
or dispute . . . which may arise between any employee or group
of employees and the Corporation. . . . All questions, disputes
or controversies under this Agreement shall be settled and deter-
mined solely and exclusively by the conciliation and arbitration
procedures provided in this Agreement.’’ [Emphasis added.]
In United Technologies, the pertinent language read (268 NLRB
at 557 fn. 3):
In the event that a difference arises between the company, the
union, or any employee concerning the interpretation, application
or compliance with the provisions of this agreement, an earnest
effort will be made to resolve such difference in accordance with
the following procedure which must be followed. [Emphasis
added.]
9 I do not, however, agree with the General Counsel and the Union
that deferral is also inappropriate under the reasoning of American
National Can Co., 293 NLRB 901 (1989), and other cases, which
reject deferral in order to avoid a ‘‘two-tiered’’ process. If this case
were to be deferred to arbitration, the only issue would be whether
the adoption of the safety and health clause constitutes a waiver of
the Union’s asserted statutory right to seek midterm bargaining. If
the arbitrator found such a waiver, that would be the end of the case.
If he found no such waiver, and also concluded that the Union did
not have to exhaust its remedies under the clause before pressing its
Board charge, the Union would be back before the Board, presum-
ably as it would be in most Collyer cases in which the arbitrator
rules in favor of the union. This is not the sort of ‘‘two-tiered’’
process which the Board has in the past attempted to avoid.
On August 16, a company official wrote to the union sec-
retary-treasurer, proposing ‘‘[p]ursuant to Article XXII of the
Collective Bargaining Agreement . . . to schedule meetings
of the Safety Committee . . . for the third Thursday of every
month, commencing with September 21, 1989.’’ He enclosed
an ‘‘Agenda,’’ listing ‘‘Review of August Accidents,’’
‘‘Safety Theme for November,’’ and ‘‘Facility Safety Walk
Through,’’ and he invited the Union to propose additional
agenda items. Also on August 16, the Region issued its com-
plaint in Case 1–CA–26475. A series of prickly letters be-
tween Domesick and Menard followed, having to do pri-
marily with procedural matters.
In the end, no committee was ever formed pursuant to arti-
cle XXII. In addition, no negotiating sessions, as requested
by the Union in its letters of June 7 and 15, have ever been
held.
General Counsel introduced through Domesick evidence of
three instances in which the parties had, after discussion,
reached accords on issues relating to new operational needs
which arose during the period of the bargaining relationship.
II. CONCLUSIONS AS TO CASE 1–CA–26475
Prior to the hearing, Respondent filed two motions for
summary judgment with the Board, on both occasions argu-
ing, inter alia, that this case should be deferred to the parties’
grievance-arbitration procedure. In both instances, the Board
denied the motions for deferral ‘‘without prejudice to the Re-
spondent’s right to renew its request before the administra-
tive law judge.’’
In making his request for deferral to arbitration at the
hearing, counsel for the Respondent stated, inter alia, that in
the proposed arbitration, the arbitrator would determine
whether, ‘‘by agreeing to the fact that the [article XXII]
committee would have recommendatory power, has the union
waived its right to insist safety issues be brought forward in
any other fashion, other than to the committee.’’ On brief,
counsel asserts, ‘‘To determine whether or not the Union,
even if it had the right to demand mid-term negotiations, has
waived the right to negotiate during the term of a collective
bargaining agreement over safety issues is a question that
can only be determined by interpretation of Article XXII of
the collective bargaining agreement between the parties.’’
When the Board in Collyer Insulated Wire, 192 NLRB
837 (1971), as reaffirmed in United Technologies Corp., 268
NLRB 557 (1984), enunciated a doctrine of deferring labor-
management disputes, at least initially, to the arbitral process,
it did so predicated upon one fundamental tenet: that the par-
ties had agreed that they would resolve their disputes by the
method stated in the contract. In Collyer, supra at 842, 843,
the Board wrote, ‘‘[T]he contract between Respondent and
the Union unquestionably obligates each party to submit to
arbitration any dispute arising under the contract and binds
both parties to the result thereof . . . . When the parties
have contractually committed themselves to mutually agree-
able procedures for resolving their disputes during the period
of the contract, we are of the view that those procedures
should be afforded full opportunity to function.’’ Again, in
United Technologies Corp, supra at 559–560, the Board em-
phasized that ‘‘[w]here an employer and a union have volun-
tarily elected to create dispute resolution machinery cul-
minating in final and binding arbitration, it is contrary to the
basic principles of the Act for the Board to jump into the
fray . . . . Certainly great damage could be done to the en-
tire system of grievance arbitration, and to the process of
collective bargaining, if parties believed that they could ig-
nore an agreed-upon method of settling disputes.’’
The difficulty that this language presents here is that in the
instant case, the Union has made no commitment to exclu-
sively use the grievance arbitration procedure to resolve its
disputes with the Respondent. The operative language of arti-
cle VII—and we must assume that the words were chosen
with care—reads: ‘‘The Union or any individual employee or
group of employees shall have the right to present grievances
relating to the interpretation of the terms of this Agreement
to the Employer, and to have such grievances adjusted
. . . .’’ (Emphasis added.) The unmistakably clear literal
language of the provision, accordingly, imposes no contrac-
tual obligation upon the Union to process its complaints
through the grievance arbitration procedure.8 To force the
Union to do so would effectively change the words ‘‘shall
have the right to’’ to ‘‘must.’’ That, for Collyer to apply,
there has to be in place a grievance procedure which obli-
gates both parties is indicated by the Board’s language in Ar-
izona Portland Cement Co., 281 NLRB 304, fn. 2 (1986):
‘‘We agree with the judge that this matter is not one properly
subject to deferral under Collyer Insulated Wire . . . as there
is no contract in existence under which the parties are mutu-
ally bound by an agreed-upon grievance-arbitration proce-
dure.’’ (Emphasis added.) Accordingly, I conclude that defer-
ral to arbitration is inappropriate in this case.9
719AUGUST A. BUSCH & CO.
I recognize that neither the General Counsel nor the Union has ad-
vanced the foregoing argument for resolution of the deferral issue.
In applying Collyer, however, one must begin by examining the
grievance-arbitration clause in the light of Collyer’s fundamental un-
derlying premise of mutuality of commitment. The question of
whether the Board should defer application of its jurisdiction is a
question peculiarly and institutionally for the Board, and whether de-
ferral is appropriate should not depend on whether the General
Counsel or the Union has advanced an argument which is present
and which undermines Collyer’s application.
10 For a ‘‘clear and unmistakable’’ zipper clause, see GTE Auto-
matic Electric, 261 NLRB 1491 (1982).
11 I do not, however, rely on the fact that, on three previous occa-
sions, Respondent entered into midterm agreements with the Union.
What Respondent may have done to further its own interest on those
occasions does not put a conclusive gloss on the contract. Cf. John-
son-Bateman Co., 295 NLRB 280 (1989).
That brings us to the question of whether a union has a
right to bargain, during the term of an agreement, over mat-
ters not contained in the contract or discussed during its ne-
gotiation. The Board has long held, with court approval, that
Section 8(d) of the Act (which narrows the bargaining obli-
gation so as not to ‘‘requir[e] either party to discuss or agree
to any modification of the terms and conditions contained in
a contract for a fixed period’’) does not ‘‘relieve[] an em-
ployer of the duty to bargain as to subjects which were nei-
ther discussed nor embodied in any of the terms and condi-
tions of the contract.’’ NLRB v. Jacobs Mfg. Co., 196 F.2d
680, 684 (2d Cir. 1952), enfg. 94 280 NLRB 824, 827
(1951); Michigan Bell Telephone Co., 306 NLRB 281
(1992).
The next question, then, is whether article XXII of the
agreement, which establishes a committee to, inter alia, ‘‘re-
view issues relating to health and safety’’ and to make
‘‘every effort . . . to correct those items which the commit-
tee deems necessary’’ falls within the Jacobs rule go as to
obviate the necessity for the Respondent to bargain as re-
quested. The answer seems clear.
The Board issued four opinions in Jacobs, and the plural-
ity opinion of Members Houston and Styles contains this
statement of their holding: ‘‘Those bargainable issues which
have never been discussed by the parties, and which are in
no way treated in the contract, remain matters which both the
union and the employer are obliged to discuss at any time.’’
94 NLRB at 1219. As earlier noted, the enforcing court ap-
proved a similar standard (‘‘neither discussed nor embodied
in any of the terms and conditions of the contract’’).
Can it be plausibly said that the ‘‘subjects’’ which the
Union wished to discuss here were ‘‘embodied in any of the
terms and conditions of the contract’’ by virtue of article
XXII? My own answer to that question is in the negative.
By agreeing to appoint a committee which would discuss
‘‘health and safety’’ matters, the parties did not thereby
‘‘treat’’ or ‘‘embody’’ in the bargaining contract the issues
raised by the Union (nor is there any evidence that those
issues were ever discussed during negotiations). Jacobs does
not address the question in terms of whether article XXII
constituted a ‘‘clear and unmistakable waiver’’ of the duty
to bargain about these subjects, Metropolitan Edison Co. v.
NLRB, 460 U.S. 693, 708 (1983), but later cases adopt that
as the appropriate doctrinal approach. NL Industries v. NLRB,
536 F.2d 786, 790 (8th Cir. 1976), enfg. 220 NLRB 41
(1975), and National Broadcasting Co., 241 NLRB 920, 921
(1979). It should be noted that, depending on the (unknown)
operational procedure adopted by the committee, the Union’s
requests for safety and health measures might not even get
to the point at which the committee would be required to
make ‘‘every effort’’ to bring the Union’s requests to Re-
spondent’s attention; the mere existence of the committee, in
other words, carries no guarantee that the safety measures
sought by the Union would even be formalized for presen-
tation to the management.
In these circumstances, I conclude that article XXII does
not operate to preclude the Union from bargaining about the
matters listed in Domesick’s June 15 letter.
The final argument advanced by Respondent relies on arti-
cle XXV, which provides that the contract ‘‘shall not be re-
opened by either party for any reason whatsoever.’’ This
clause is not a ‘‘clear and unmistakable’’ waiver of the statu-
tory right; as the Union argues, ‘‘reopening’’ normally con-
notes revision of existing terms. See, e.g., General Electric
Co., 296 NLRB 844 fn. 10 (1989). It may be noted, for pur-
poses of a fortiori analogy, that in Michigan Bell Telephone
Co., supra, the Board found the following ‘‘zipper’’ clause
to be ‘‘ambiguous’’:
This Agreement is agreed upon in final settlement of all
demands and proposals made by either party during re-
cent negotiations, and the parties intend thereby to fi-
nally conclude contract bargaining throughout its dura-
tion.
I find, therefore, that the ‘‘shall not be reopened’’ clause
did not effect a clear and unmistakable waiver of the Union’s
statutory right to bargain about matters not contained in the
contract or previously discussed during bargaining.10
Thus, I conclude that Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to bargain about safety matters
as requested by the Union.11 I must say that the Union’s de-
mand was less than explicit, but Respondent at no time
raised any question about the generality of the demand. The
last bargaining contract in evidence was to expire in the
month after the hearing in this case. It may well be that the
bargaining for the new agreement has mooted the particular
demands made here, and the bargaining agreement may have
altered the ground rules. I have had no communication from
Respondent broaching the question of mootness, and I shall
enter the customary remedial order.
III. BASIC FACTS RELATED TO CASE 1–CA–27080
This case, raising the question of whether Respondent has
unlawfully refused to furnish information to the Union, has
a rather intricate background.
On September 22, 1989, the law firm which represents
Anheuser-Busch, Inc., Respondent’s parent, wrote to the Fed-
eral Highway Administration (FHA) requesting an advisory
opinion as to whether the Federal Motor Carrier Safety Reg-
ulations (FMCSR) were applicable to its Wholesale Oper-
ations Division, which is composed of Respondent and 11
other wholesale distribution facilities nationwide. It is appar-
ent from the thrust of the letter (‘‘a brief,’’ as union counsel
characterized it at the hearing) that the parent corporation
was interested in soliciting an affirmative reply from FHA,
so that it could clarify that its wholesale drivers were re-
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 I note that the December 1, 1989 letter from the parent corpora-
tion, Anheuser-Busch Companies, Inc. (ABI), to the Charging Party
precipitated the Union’s January 15, 1990 request for information
upon which this segment of the proceeding is predicated. That re-
quest was addressed to ABI, but the complaint here names the whol-
ly owned subsidiary, August A. Busch & Co. of Massachusetts, Inc.
(ABM), as the Respondent. The Respondent has raised no issue
based upon these facts, either at the hearing or on brief. That may
be because Attorney Menard, who represents ABM, authored all
subsequent correspondence on the matter, and, by February 15,
1990, was captioning the correspondence as ‘‘August A. Busch &
Co. of Massachusetts Inc. and Teamsters Local Union No. 122 Re-
quired to obtain medical certification, including drug testing,
and to comply with other FMCSR rules. In the September
22 letter, the parent corporation’s counsel treated the 12 dis-
tribution facilities, with some exceptions, as operating identi-
cally. On November 15, 1989, FHA wrote to counsel opin-
ing, essentially, that on the facts presented, the transportation
by the wholesale drivers would constitute ‘‘interstate com-
merce’’ within the meaning of that term as defined in the
Motor Carrier Safety Act of 1984.
On December 1, 1989, the assistant director for labor rela-
tions for the parent company sent a letter to the Charging
Party Union, stating that the company had received notice
from FHA that it must comply with the FMCSR; briefly set-
ting out the requirements of the regulations; and attaching the
FHA opinion letter.
By letter dated January 15, 1990, Attorney Domesick re-
plied to the assistant labor relations director. After stating
that the bargaining agreement made no provision for the sort
of drug testing referred to in, the December 1 letter, i.e., as
part of a ‘‘biannual physical,’’ and asserting that drug testing
is a mandatory subject of bargaining (citing Johnson-Bate-
man Co., supra), Domesick set out 26 requests for informa-
tion and documents ‘‘[i]n order to determine whether the
Company’s actions require bargaining, to prepare for such
bargaining as may be required, in order to determine whether
a grievance exists and/or to determine the merits of such a
grievance.’’ The requests bore upon various facets of the
manner in which Respondent conducted its business, as well
as how Respondent’s parent and affiliates did business with
Respondent.
The January 30, 1990 reply to this letter was written not
by its addressee, but rather by Attorney Menard, who took
the position that the Johnson-Bateman case was irrelevant
and asked for ‘‘other case law supporting your proposition
or supporting your demand for information.’’ In his response
of February 6, 1990, Domesick explained that he was seek-
ing ‘‘specific facts’’ relating to the interstate or intrastate na-
ture of Respondent’s operations and, thus, to the applicability
of FMCSR to Respondent’s drivers, and he renewed the Jan-
uary 15 request.
On February 15, 1990, Menard sent Domesick a copy of
the request for advisory opinion originally made to FHA
(which thus satisfied the first of Domesick’s 26 requests),
saying that it would fully answer his questions and inviting
Domesick to indicate whether he had other questions. The
Union filed its charge in this case on February 16, 1990.
Domesick wrote Menard on February 23 that the furnished
document was ‘‘incomplete,’’ ‘‘insufficient,’’ ‘‘brief, gener-
alized, misleading and, in my view, inaccurate.’’ Domesick
asserted his belief that Respondent’s operations ‘‘are wholly
intrastate.’’ He also made reference to the NLRB charge on
file, and he renewed his request for the information. There
appears to have been no further correspondence on this sub-
ject.
Although the parent corporation’s December 1, 1989 letter
had stated that various rules would take effect in that month,
in fact nothing was done for a year. Eventually, to meet
some specific problems arising in this area relating to certain
of Respondent’s employees, a January 1991 agreement was
worked out.
On September 17, 1991, however, the parent corporation
wrote the Union that ‘‘pursuant to the requirements of the
Federal Highway Administration’s regulations,’’ the Com-
pany would begin ‘‘random and nonsuspicion-based
postaccident testing’’ at various times in November 1991 and
January 1992.
IV. DISCUSSION AND CONCLUSIONS: CASE 1–CA–27080
A statutory bargaining representative has both the author-
ity and the obligation to act in what it reasonably perceives
to be the best interests of the employees it represents. This
duty and power to represent bargaining unit employees may
find expression in varying formats, ranging from information
discussions with employers to the filing of grievances to ju-
dicial litigation. One of the several rights found in Section
8(al(5) by the Board and courts to assist unions in these re-
sponsibilities is the right to require employers to provide in-
formation relevant and necessary to the performance of a
statutory duty. NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956).
Over the years, standards have been developed in this area.
Where the information sought relates to ‘‘core’’ terms and
conditions of employment within the bargaining unit, no spe-
cific showing of relevance is required, Atlas Meal Parts Co.
v. NLRB, 660 F.2d 304, 309–310 (7th Cir. 1981). When the
requested information extends to matters outside the realm of
the unit, ‘‘relevance is required to be somewhat more pre-
cise.’’ Ohio Power Co., 216 NLRB 987, 991 (1975). ‘‘[A]
reasonable belief’’ as to the usefulness of the information
sought has been held to be sufficient. Walter N. Yoder &
Sons v. NLRB, 754 F.2d 531, 535 (4th Cir. 1985). The ‘‘rel-
evance’’ of the request is governed by ‘‘a liberal discovery-
type standard,’’ NLRB v. Acme Industrial Co., 385 U.S. 432,
437 (1967), i.e., ‘‘the probability that the desired information
was relevant, and that it would be of use to the union in car-
rying out its statutory duties and responsibilities.’’ Ibid.
The General Counsel takes the position that the informa-
tion requested by the Union here falls into the non-
presumptive second category, but there can be little doubt of
its relevance. The Respondent’s parent had solicited from a
Federal agency, and was about to impose upon union-rep-
resented employees, an opinion that, pursuant to Federal law,
the drivers would be subject to periodic drug testing. Obvi-
ously, this imposition could have directly affected the work-
ing conditions—indeed, the tenure—of the unit employees.
The Union chose to challenge what it perceived, on the basis
of its belief, to be an unfounded declaration by FHA. In
order to elicit documented support for this belief, the Union
sought information from the Respondent. I find no reason to
conclude that the Union was not entitled to this information.
Sonat Marine, 279 NLRB 100 (1986) (union entitled to fac-
tual basis for conclusion that employees were supervisors).12
721AUGUST A. BUSCH & CO.
quest for Information (Application of W T Interstate Regulations),’’
a caption which union counsel had first adopted in his preceding let-
ter of February 15, 1990. Attorney Menard’s brief states, in ref-
erence to a letter written by him to attorney Domesick, that ‘‘the
Company replied through its counsel.’’ It seems clear that, without
so specifying, ABM was agreeing to act as agent for ABI in this
transaction, and both parties understood that relationship.
13 Minnesota Mining Co., 261 NLRB 27, 29–30 (1982), cited by
Respondent, discusses Westinghouse but does not overrule it. In
Minnesota Mining, the Unions ought the information only for de-
fense of a lawsuit; here, legal action would likely be the last resort
for the Union, as discussed.
14 On brief, union counsel states that upon receipt of the requested
information, ‘‘the Union would be able, inter alia, to bargain with
the contracting employer, ABM, to submit a joint request for an ad-
visory opinion letter or to condition bargaining upon obtaining an
FHA opinion letter dealing with ABM’s operations.’’
There can be an assortment of arguments available to an
employer to advance against requests for information, and, at
the hearing, Respondent explored several such avenues. The
argument section of Respondent’s brief, however, has nar-
rowed its contentions to three, and I shall, accordingly, ad-
dress only those.
Respondent’s first contention is that ‘‘where the Union is
pursuing litigation before the Board, or where it is seeking
information for purposes of EEOC litigation, or where it is
seeking information for other litigation, neither the courts nor
the Board have recognized that this is the type of statutory
function which would entitle it to the information re-
quested.’’ The Board has expressly held to the contrary, Wes-
tinghouse Electric Corp., 239 NLRB 106, 110–111.13 Fur-
thermore, it is quite clear that the Union has not suggested
that its only interest in obtaining the requested data is to liti-
gate.
True enough, Attorney Domesick has not been completely
consistent about his intentions. In his request letter, as earlier
described, Domesick stated that the Union desired the infor-
mation ‘‘[i]n order to determine whether the Company’s ac-
tions require bargaining, to prepare for such bargaining as
may be required, in order to determine whether a grievance
exists and/or to determine the merits of such a grievance
. . . .’’ At the hearing, he said initially that ‘‘our first ap-
proach would have been, armed with the information, to sub-
mit the information to [the Office of Motor Carrier Safety
within the FHA] . . . in order to obtain an unvarnished and
unpredictable answer.’’ ‘‘Alternatively,’’ he had discussed
with his client other routes, such as ‘‘beginning litigation in
; the Federal system’’ or the state judicial system. Subse-
quently, however, Domesick testified that what he ‘‘frankly
. . . believed would occur, that if the company developed
that information for us, we would be able to reach agreement
that these operations were not covered by [the Federal regu-
lations],’’ which would obviate the need for formal action.
It seems entirely likely that if a capable lawyer like
Domesick received information which he considered favor-
able to his cause, his first notion would have been to attempt
to convince Menard, his ‘‘business friend’’ of 20 years, to
reach the kind of accommodation which, the record shows,
they were in the habit of working out.14 In any event, how-
ever, whether he contemplated resolution by informal settle-
ment, by trying to persuade FHA to exempt the Medford fa-
cility from its previous general opinion, or by litigating,
Domesick would surely have been acting in a manner and for
a purpose appropriate to and comprehended by the Union’s
statutory responsibility. Just as a union is entitled to request
information in order to determine whether to file a grievance,
NLRB v. Acme Industrial Co., supra, so it may seek informa-
tion for the purpose of persuading an employer, short of for-
mal action, to change course.
Respondent’s second argument on brief is that the infor-
mation sought was not ‘‘necessary,’’ since Domesick and the
Union were ‘‘extremely knowledgeable’’ about the Respond-
ent’s operation. There is, of course, a serious difference be-
tween what the Union thinks it knows about Respondent’s
(and its parent’s) business, and having in hand actual con-
firmation of that belief from the Company itself. With the
latter, Domesick would not either have to fence with the Re-
spondent or, if it came to that, provide unsubstantiated facts
‘‘upon information and belief’’ to a busy government agen-
cy. The data sought was ‘‘necessary’’ within any reasonable
sense of that word.
The final argument proffered by Respondent is that the
Union ‘‘has waived’’ and ‘‘has rendered moot any real issue
in this case’’ by entering into a side agreement on January
29, 1991, which required drug testing. The fact that the
Union entered into a settlement which accepted the notion of
requiring certificates of ‘‘negative controlled substance test’’
to save the jobs of six drivers does not strike me as a waiver,
given that the Union simultaneously had on file a charge
with the Board accusing Respondent of withholding informa-
tion deemed necessary to win its cage against the require-
ment for periodic drug testing. A waiver of statutory rights
must, as indicated, be ‘‘clear and unmistakable.’’ Metropoli-
tan Edison Co. v. NLRB, supra. And any claim of
‘‘mootness’’ must surely be refuted by the fact that in Sep-
tember 1991, the Respondent’s parent notified the Union that
the Company intended soon to be implementing new FHA
regulations putting in place a requirement for ‘‘random and
non-suspicion-based post-accident’’ testing for drivers such
as those employed by Respondent.
There was a rather complicated argument raised by Re-
spondent at the hearing to the effect that a Massachusetts
statute has adopted the drug testing; requirements of the
FHA, so that, the argument goes, it is a matter of indiffer-
ence whether Respondent is considered to be in ‘‘interstate’’
or ‘‘intrastate’’ commerce. Although Respondent makes ref-
erence to this issue in ‘‘The Facts’’ section of its brief, it is
nowhere to be found under ‘‘Argument.’’ I shall therefore
decline to go further into the matter myself, other than to say
that the Union’s contention seems persuasive that Massachu-
setts law requires either a public hearing or public notice in
order for the State’s original incorporation of Federal regula-
tions to also incorporate subsequent changes in those regula-
tions.
Finally, I note that neither at the hearing nor on brief has
the Respondent entered specific objection to any of the 25
outstanding questions posed by the Union. Having heard no
such claims, I shall assume that all such questions are perti-
nent to the issue.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
16 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
3. By, in and after June 1989, refusing to bargain with the
Union about various matters relating to safety, and by, since
on or about January 30, 1990, refusing to furnish to the
Union information necessary and relevant to the performance
of its statutory responsibilities, Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
I recommend that Respondent be required, on request by
the Union, to (1) bargain in good faith about safety matters,
as delimited in the foregoing decision, and (2) provide the
information requested by the Union in its letter of January
15, 1990.
I shall also recommend that a cease-and-desist order be
issued, and that posting of the traditional notices be required.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended15
ORDER
The Respondent, August A. Busch Co. of Massachusetts,
Inc., Medford, Massachusetts, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Teamsters Local
Union No. 122, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO (the Union) by refusing on request to supply relevant
information needed by the Union to perform its duties as col-
lective-bargaining representative of the employees in the unit
consisting of drivers, helpers, and warehousemen at its Med-
ford, Massachusetts facility, and by refusing to bargain with
the Union about mandatory subjects of bargaining when re-
quired by law to do so.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish, on request by the Union, information as speci-
fied in the remedy section hereinabove.
(b) Bargain, on request by the Union, as specified herein-
above.
(c) Post at its location in Medford, Massachusetts, copies
of the attached notice marked ‘‘Appendix.’’16 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 1, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.