Beatrice Food Co.

National Labor Relations Board - Board Decisions

Oct 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.