Beatrice Food Co.

National Labor Relations Board - Board DecisionsOct 2, 1974

213 N.L.R.B. 794 (N.L.R.B. 1974)

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John Sexton & Co., a Division of Beatrice Food Co. and John W . Knuth . Case 13-CA-11989 October 2, 1974 DECISION AND ORDER REMANDING PROCEEDING TO ADMINISTRATIVE LAW JUDGE By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On September 11, 1973, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The complaint herein alleges that Respondent dis- charged the Charging Party because of his union ac- tivities and because of his protected concerted activities in filing claims and/or grievances pursuant to a collective-bargaining agreement and because the Charging Party was endeavoring to implement his rights under the aforesaid agreement. The complaint goes on to allege that by so doing Respondent en- gaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. Respondent's answer consists of a general denial of the above allegations and contains an affirmative de- fense "that complainant was discharged for cause in accordance with the appropriate union agreement." At the hearing before the Administrative Law Judge the merits of the case were fully litigated, Gen- eral Counsel adducing testimony for the purpose of showing that the Charging Party was the object of a discriminatory discharge and Respondent offering testimony for the purpose of supporting its affirma- tive defense that the Charging Party had instead been discharged for just cause. Neither in its answer nor at the outset of the pro- ceeding nor at the time Respondent moved, at the close of General Counsel's case, for dismissal of the complaint did Respondent plead, argue, or prove, as an affirmative defense, that the Charging Party had filed a grievance covering essentially the same subject matter here involved, that the grievance had been arbitrated, that the proceedings were fair and regular, that the award was consistent with the policies of the Act, and that the Board ought therefore to dismiss under its Spielberg' doctrine. In the course of Respondent's cross-examination of the Charging Party, however, the Charging Party tes- tified that he had filed a grievance concerning his discharge and that the grievance had gone to some unidentified 12-man board under the governing col- lective-bargaining agreement. General Counsel ob- jected to the question, although it had already been answered, whereupon the Administrative Law Judge, through a series of questions addressed to counsel, developed a stipulation by counsel that the Charging Party's "discharge resulted in a grievance filed by the Union against the Company. That grievance was a protest pursuant to contract. When it got to the top level of arbitration the officer or whoever he was de- cided the arbitration adversely to the Union." Respondent's principal witness was Norman Por- ges, business manager of the John Sexton Company. He testified under direct examination that a grievance was filed in connection with the discharge and that a grievance meeting was held at which he (Porges) was not present, and that the grievance then went to "the 12-man board." He did not testify as to the proceed- ings before the 12-man board nor, at this point in his examination, did he even give testimony as to what the result was. He did testify that he had minutes of the 12-man board and, if the transcript is correct, the witness testified that those minutes would be entered as evidence. (It seems more probable that this state- ment was made by counsel but in the record it is attributed to the witness.) At no time during the pro- ceeding were these minutes introduced into evidence. Under questioning by the Administrative Law Judge, Porges testified that it was his understanding that the 12-man board decision was "equivalent to binding arbitration." The collective-bargaining agreement which was in- troduced into evidence contains a grievance proce- dure providing for reference of grievances to a board of arbitration and, if necessary, to an impartial arbi- trator mutually selected by the parties from a list of five to be obtained from the American Arbitration Association. Other than the stipulation to the effect that "when it got to the top level of arbitration the officer or whoever he was decided the arbitration adversely to the Union," the record is totally silent as to the sub- stance or the rationale of decision or even as to the identity of the "twelve-man board" or "the officer or whoever he was," as the stipulation reads. 1 Spielberg Manufacturing Company, 112 NLRB 1080 (1955). 213 NLRB No. 111 JOHN SEXTON & CO 795 Upon this bare bones record the Administrative Law Judge held that the contract provided for regular arbitration , an arbitration had been held, and that the Charging Party, as well as the Union, lost the arbitra- tion . He then held that General Counsel had failed to show that the arbitration was irregular , unfair or that the result was repugnant to the policies of the Act and therefore he recommends that the complaint be dis- missed. The difficulty which we have with this case is the extraordinarily sketchy nature of the evidence relat- ing to what the Administrative Law Judge concluded was the central issue . We are troubled-and puz- zled-by the apparent failure of both counsel for the General Counsel and counsel for the Respondent to understand the significance of the issue and the lack of exploration thereof by both counsel which has left the record in such an incomplete state . Only the ques- tioning by the Administrative Law Judge seems to have alerted Respondent to the fact that the Spielberg line of cases exists and that the decision of this Board in the instant proceeding might turn upon the applica- tion of that precedent here . Counsel for General Counsel seems to have been equally oblivious to this issue and , so far as the trial record is concerned, con- tented himself simply with a single statement, in the nature of an objection, that "the proceedings involv- ing his grievance is not binding upon this particular court at this particular time." In such a state of-,the record , we are not persuaded that it is appropriate to dismiss the complaint on Spielberg grounds. Instead , we are of the view that a respondent who wishes to rely on a Spielberg defense must identify what specific grievance and/or stipulat- ed issue was submitted to arbitration and what or who the arbitration tribunal was; and must also identify, by the best evidence available (usually the text of the arbitration award), specifically what the arbitration tribunal decided. Only by having such evidence in the record can we determine whether the Spielberg re- quirements have been met. After such prima facie proof of the defense has been placed in the record it then, and only then, becomes the burden of General Counsel to counter it by evidence tending to show that the proceedings were not fair , were not regular, that the issue submitted did not encompass the unfair labor practice issue,' or that the decision of the tribu- nal is in some respect repugnant to the purposes of the Act. The Administrative Law Judge here was concerned with General Counsel 's failure to show that the arbi- tration proceedings were not fair and regular and with his failure to show that the decision of the arbitration 2 Electronic Reproduction Service Corporation , 213 NLRB No 110 (1974) tribunal was repugnant to the policies of the Act. He would be justified in that concern , but for the crucial fact that Respondent failed in its initial duty both to plead and to prove a prima facie case for its Spielberg defense . The naked stipulation that a grievance of some kind was presented and that some board decid- ed it in some manner adversely to the Charging Party is too slim a reed upon which to premise a decision based on Spielberg. In the absence of adequate proof to support, prima facie, the Spielberg affirmative defense , we hold that the Administrative Law Judge below should have pro- ceeded to a decision on the merits of the case. We do not reach this conclusion without hesitancy. It is al- ways troublesome to ignore a possible affirmative de- fense of which we have at least a clue , but which Respondent failed adequately to plead or to prove. Yet, our inevitable curiosity about the possible validi- ty of such a defense should not , we think, lead us to reach beyond the proper limits of our authority. Gen- eral Counsel and the Respondent have made the rec- ord and we feel duty bound to confine our inquiry, as a reviewing tribunal, to the record which they have made . When a Respondent , whether through inadver- tence , lack of sophistication , or for whatever reason, fails to develop a possible affirmative defense by proper pleading and proper proof it is not for us, under our system of jurisprudence , to attempt to sup- ply that proof or to remand for the receipt of evidence which is not newly discovered and instead was plainly available , but not offered , at the time of the trial. We have before us adequate evidence on which to assess whether the discharge was discriminatory or for cause , and, indeed , that issue was fully litigated. It was on that issue that a full record was made . It is upon that record, then, that we must decide the case. Be- cause the testimony on the merits is in conflict we shall remand the case to the Administrative Law Judge who heard the evidence and saw the witnesses and should , therefore, make the initial decision. The evidence with respect to the affirmative defense is, we hold, insufficient , and we therefore reject the Admin- istrative Law Judge's reliance thereon as the determi- native issue herein. ORDER Pursuant to Section 102.48 of the Board 's Rules and Regulations , Series 8, as amended, it is hereby ordered that this proceeding be, and it hereby is, remanded to Administrative Law Judge Thomas A. Ricci for the purpose of deciding the issues joined by the pleadings herein on the merits. IT IS FURTHER ORDERED that the Administrative Law Judge shall prepare and serve on the parties a Supple- 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mental Decision containing his resolutions of the credibility of witnesses, findings of fact, conclusions of law, and recommendations; and that, following the 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 appli- cable. MEMBER FANNING, concurring: I agree with my colleagues that this case should be remanded to the Administrative Law Judge for a deci- sion on the merits. However, for the reasons set forth by Member Jenkins and me in our dissent in Electron- ic Reproduction Service Corporation, 213 NLRB No. 110, I do not subscribe to the rationale employed by my colleagues in ordering such remand. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in this proceeding was held at Chicago, Illinois, on July 18 and 19, 1973, on complaint of the General Counsel against John Sexton and Co., a division of Beatrice Foods Co., herein called the Respondent or the Company. The charge was filed on December 14, 1972, and the complaint issued on April 30, 1973, alleging illegal discharge of John W. Knuth, the Charging Party, in violation of Section 8(a)(3) of the statute . Briefs were filed by the Respondent and General Counsel. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent , a corporation , is engaged in the sale and distribution of grocery supplies and maintains a place of business in Elk Grove Village, Illinois. During the past cal- endar year, a representative period , it received gross reve- nues in excess of $1 million from the sale of grocery supplies, of which supplies valued in excess of $500,000 was sold and shipped from its Illinois plant directly to other states. During the same period the Respondent purchased supplies valued in excess of $100,000 which was shipped to its Illinois location from out-of -state sources . I find that the Respondent is engaged in commerce within the meaning of the Act. III. MOTION TO DISMISS THE COMPLAINT This case falls in the area of Board decisions commonly referred to as Spielberg (Spielberg Manufacturing Co., 112 NLRB 1080 (1955) and Collyer (Collyer Insulated Wire a Gulf and Western Systems Co., 192 NLRB 837 (1971)) type cases . Knuth, a truck driver, who was discharged and per- sonally filed this charge, was covered, during his employ- ment with the Respondent, by a collective-bargaining contract between the Company and the Union for all driv- ers. The contract provides for binding arbitration of all disputes arising between the parties over issues of dis- charges. Spielberg stands for the rule that after a labor dis- pute has been finally arbitrated pursuant to a collective-bargaining agreement, the Board will not process an unfair labor practice proceeding arising from the same dispute. Collyer stands for the rule that when the dispute has not yet been brought to arbitration, the Board will withhold its process so that the parties may resolve their dispute in accordance with the contractual arbitration proceeding. Knuth's discharge did become the pinpointed issue of a regular grievance, it was processed by the Union through every subsequent step, and there was a final and binding arbitration decision exculpating the Respondent , all in com- plete accordance with the detailed grievance and arbitration proceeding set out in the contract. The Respondent there- fore moved for dismissal of this complaint now on authority of the Spielberg line of cases. To the extent that the entire record as made in this pro- ceeding reveals the facts that are pertinent to the motion to dismiss, all of them are clear and undisputed, some proved by documentary evidence and some established by stipula- tion of the parties. Under "grievance procedure" the con- tract provides in pertinent part: All grievances relating solely to the discharge or disci- pline of an Employee shall be processed as follows: (a) The Employer and the Union having jurisdiction over the Employee shall within five (5) working days after notice of the grievance meet as a grievance com- mittee and reach a settlement which shall be final and binding. (b) If the parties fail to reach a settlement within the aforesaid time, then within five (5) working days there- after the matter shall be submitted to the permanent Joint Grievance Committee constituted as set forth in Section 2(b) of this Article. If the Joint Grievance Committee resolves the dispute by a majority vote of those present and voting, then such decision shall be final and binding upon the par- ties . . II. THE LABOR ORGANIZATION INVOLVED I find that Truckdrivers, Oil Drivers, Filling Station and Platform Workers Union, Local No. 705, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. In the course of the hearing the General Counsel and counsel for the Respondent agreed upon the following state- ments of fact as correct: JUDGE Ricci: The discharge of this man which is at the heart of his complaint was the subject of a griev- JOHN SEXTON & CO. ance filed by the union under his agreement with this Company, is that correct? MR ADELMAN (General Counsel): That's correct. JUDGE Ricci That grievance was processed pursuant to the grievance of structure of the contract? MR ADELMAN That 's correct. JUDGE Ricci And it went to the highest level of arbi- tration provided for in the contract? MR ADELMAN Correct. JUDGE Ricci It was recovered [resolved] by whatever that form is adverse to Mr . Knuth , right? MR ADELMAN Correct. JUDGE Ricci Adverse to the Union I may say, is that true? MR ADELMAN Yes. During the hearing the parties also referred to the "Joint Grievance Committee " of which the contract speaks as "the twelve -man board ." As a witness for the General Counsel, Knuth gave the following answer , of necessity consistent with what the General Counsel wanted him to say- JUDGE Ricci Sir , You spoke of a twelve-man board. THE WITNESS Right. JUDGE Ricci If you answer this question yes all these lawyers are going to be stuck with their answers unless they tell me something else. Is it your understanding under the contract of the truck drivers union that the twelve -man board decision is the equivalent of binding arbitration? THE WITNESS It is my understanding that the twelve- man board is equivalent to binding arbitration. JUDGE Ricci That is, it puts an end to the matter. Is it your understanding that the contract said if you file a grievance , if it is answered by the twelve -man board everybody lives with it and that 's the end of it? THE WITNESS That is my understanding. I grant the Respondent 's motion and accordingly will recommend dismissal of the complaint. In the posture of this case , the question raised goes to the heart of the Board 's rule enunciated in both Spielberg and Collyer. The critical , and determinative , facts here are two: (1) there has been arbitration , and (2) there is no evidence- absolutely none indicating any impropriety in the arbitra- tion that took place-however the concept of propriety be phrased or paraphrased . The essence of the Board 's policy of deferring to contractually binding arbitration is that in the absence of affirmative evidence-regardless of the iden- tity of the party upon whom the burden to offer such evi- dence may lie-that there was something wrong with the arbitration , the Board simply will not pass upon the merits of the related complaint . And it makes no difference wheth- er the arbitration has already been held , or is still to take place . The cases are legion . In applying the Spielberg princi- ple and dismissing the complaint in Denver- Chicago Truck- ing Company, 132 NLRB 1416 (1961), the Board said "we shall accept such a resolution [the arbitration ] absent evi- dence of irregularity , collusion , or inadequate provisions for the taking of testimony ." [Emphasis supplied .] And in Col- lyer itself, where the Board refused to consider the evidence offered by the General Counsel in support of the complaint and instead sent the case to arbitration , it said ". . . we shall 797 retain jurisdiction . . . for the purpose of entertaining an appropriate and timely motion . . . upon a proper showing that . . . the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act ." [Emphasis added .] In every Board decision later implementing the Collyer principle the Board repeated the critical language that it would only look at a case again after arbitration "upon a proper showing" that there was something wrong with the arbitration. Another way of stating the basic rule is that there is a presumption in favor of regularity running to any arbitra- tion held pursuant to a contractual agreed -upon grievance and arbitration procedure . Thus: "The crucial determinant is, we believe , the reasonableness of the assumption that the arbitration procedure will resolve this dispute in a manner consistent with the standards of Spielberg." National Radio Company, 198 NLRB 527 (1972). And, more recently, Unit- ed Aircraft, 204 NLRB 879 ( 1972), wherein deferring to arbitration still to come , the Board said that before it would consider the General Counsel 's evidence , it would have to be shown "sufficient to rebut the reasonableness of our fundamental assumption that the parties ' own procedure will effectively resolve current disputes in a prompt and fair manner." I To hold otherwise, to rule-as the General Counsel ap- parently is arguing here-that the Board will consider the merits of a complaint in the absence of affirmative evidence that the arbitration was-or will be-fair , regular , not re- pugnant to the policies of the Act , would be illogical and would reduce the entire approach to a mockery . In some contract arbitration situations the Board entertains an un- fair labor practice complaint ; in others it refuses to do so. What evidence is it-found in one record but lacking in another-that determines whether the Board does or does not act? As I read the cases, where the evidence of record proves the fact that arbitration was not, or will not be , "fair, regular , etc.. .. " the Board goes ahead . Where the re- cord does not contain that proof , the Board holds its hand. As the General Counsel sees it in this case , where the evi- dence of record proves the fact the arbitration was, or will be "fair , regular , etc.... " the Board holds its hand, but where it does not contain that evidence the Board goes ahead . He must be arguing this way, because he insists this case go ahead despite total absence of proof the arbitration was not "fair , regular , etc.... " and on a record which is really a void , so far as the character of arbitration that has been held is concerned . If this prosecution view of all the Board cases in this area is correct, it then means the Board is saying this: (1) In every case where the discharge has become the subject of a grievance, taken through final contract arbitra- tion , and decided adverse to the dischargee , the General Counsel is obliged , if in his view the employee was right in his cause , to issue a complaint and prove his prima facie case before the hearing examiner . If then the party who won the arbitration wants the Board to honor that determination, he must convince the Board that the proceeding was correctly handled. 1 Cf Yourga Trucking, Inc, 197 NLRB 928 (1972) 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) In every case where the charge is filed , the contract clearly provides for proper binding arbitration, and the con- tract provisions have not yet been utilized , the General Counsel is obliged to ignore the contract , issue a complaint and prove his prima facie case at the hearing. And again, then, if any party wishes to go so , it can assume the burden of proving that in fact when the arbitration does take place, it will be "fair, regular, etc...." And only then, if the defense burden is successfully carried , will the Board refer to arbitration yet to come. (3) And finally, but most important of all, in every case where the Board itself applies the Collyer rule and defers everything by sending the parties to arbitration, the General Counsel is obliged to bring the case back to the Board after the arbitration, if the ruling went adverse to the discharged employee. If all he, the General Counsel, knows is that the arbitration took place and no more , he must revive the Board proceeding . And, as in the proceeding situation, once again the party who won the arbitration is privileged to argue to the Board, and try to convince it, if it can, that the arbitration was "fair , regular, etc... . " and should be re- spected. In the case at bar the General Counsel is in precisely this last described position. He offered nothing about the char- acter of the arbitration that has been held. This means he knows nothing about it ; he proceeded with the complaint nevertheless . So far as this record shows , all the Board knows is that the contract provided for regular arbitration, it has been held, and Knuth , as well as the Union , lost. The Board also knows Knuth does not like the decision. The Board also knows, because the General Counsel did prove it, that during the same year-1972-Knuth was discharged on two other occasions , and each time went to arbitration and won, once collecting $700 and once $1,500 as backpay from the Respondent. Without inquiry into the character- regular or irregular-of an arbitration already held , without reason for finding it in any way improper, does the Board proceed with its unfair labor practice hearings and ignore only those arbitration decisions which the discharged em- ployee dislikes? I think not. RECOMMENDED ORDER I hereby recommend that the complaint be, and it hereby is, dismissed.