Armour and Co.

National Labor Relations Board - Board Decisions

Mar 23, 1977

228 N.L.R.B. 1034 (N.L.R.B. 1977)

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