Mrs. Baird's Bakeries, Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1971

189 N.L.R.B. 606 (N.L.R.B. 1971)

606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs. Baird's Bakeries, Inc. and Sales Drivers Local
No. 949, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 23-CA-3125
April 5, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On May 22, 1970, Trial Examiner Robert E. Mullin
issued his Decision in the above-entitled case, finding
that the Respondent had not engaged in the unfair
labor practices alleged in the complaint and recom-
mending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. The General Counsel and the Charging
Party filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner except as modified herein.
We do not agree with the Trial Examiner's sugges-
tion that the Board defer action on the Respondent's
unilateral discontinuance of Douglas Kelley's period-
ic assignment to the League City-Rosenberg-Wharton
run, because Kelley's grievance resulted in an
arbitration award in Kelley's favor and adverse to the
Respondent, until final court judgment is had on the
award. As the Respondent reassigned Kelley after the
award was made, this issue clearly was not before the
arbitrator.
We find, in agreement with the General Counsel,
that the Respondent violated Section 8(a)(1) and (3)
of the Act by this conduct. The Board has held that
the filing of grievances pursuant to a contractual
grievance procedure is protected by Section 7 of the
Act, and that discipline of an employee therefor tends
to interfere with, restrain, and coerce employees in
violation of Section 8(a)(1) and discourages union
activity in violation of Section 8(a)(3).1 We find no
1 NLRB v Tom Johnson, Inc, 378 F.2d 342 (C A 9), N L. R B v.
Bowman Transportation, Inc, 314 F 2d 497 (C.A. 5); Magma Copper
Company, 182 NLRB No 20, last paragraph under section III, A, 4;
Farmers Union Cooperative Marketing Association, 145 NLRB 1, 3. See also
Top Notch Manufacturing Company, Inc, 145 NLRB 429, 432.
2 Metromedia, Inc (KLAC), 182 NLRB No 37. Although, as our
merit in the Respondent's contention that no viola-
tion can be found in the absence of evidence of union
animus and in view of General Manager Day's testi-
mony that he ceased offering the League City-Rosen-
berg-Wharton run to Kelley after the award because
the arbitrator required him to pay Kelley $38 for the
run while he was paying other drivers only $19 for the
same run . Such purported justification cannot vindi-
cate conduct which was in fact related to an
employee's exercise of a right guaranteed by the Act.
The Respondent in effect disciplined Kelley because
he successfully pursued a grievance under the
collective-bargaining agreement, and the unlawful-
ness of that discipline under the Act is in no way
minimized or affected by the fact that the arbitration
award cost the Respondent money. "Indeed, if these
kinds of business reasons could justify discrimination,
the proscriptions and protections of the Act would be
rendered largely nugatory." 2
The remedy would be the same regardless of
whether the Board additionally found a violation of
Section 8(a)(5) because of the unilateral nature of the
Respondent's conduct toward Kelley. Our Order
herein, that Kelley be reinstated to the performance of
all his prior duties, including an opportunity to
perform, as in the past, the League City run, makes it
unnecessary to decide the Section 8(a)(5) issue. In all
the circumstances, therefore, the Board finds it
unnecessary to resolve that issue.3
CONCLUSIONS OF LAW
1. The Respondent is an employer within the
meaning of Section 2(2) of the Act, and is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. By discriminating against Douglas Kelley
because of his union activities the Respondent has
discouraged membership in the Union in violation of
Section 8(a)(3) of the Act.
3. By the above conduct, the Respondent has
interfered with, restrained, and coerced employees in
the exercise of their Section 7 rights in violation of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act.
dissenting colleague indicates, the facts in the instant case differ from those
in Metromedia, we cite the latter decision for an established and
unchallenged principle which is applicable to all situations where, as in
Metromedia and here, there is an invalid defense of economic motivation
for a respondent's discriminatory action
3 Cf. Star Publishing Company, 187 NLRB No 27
189 NLRB No. 89
MRS. BAIRD 'S BAKERIES
Having found that the Respondent discriminated
against Douglas Kelley because he engaged in union
activities, we shall order the Respondent to offer him
immediate reassignment to his former runs without
prejudice to his seniority or other rights or privileges
and make him whole for any loss of earnings he may
have suffered as a result of such unlawful discrimina-
tion by payment to him of a sum of money equal to
the amount he would have earned from the date of
the discrimination against him to the date of such
offer less net earnings, if any, during such period, to
be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth
Company, 90 NLRB 289, and including interest at the
rate of 6 percent per annum in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Mrs. Baird's Bakeries, Inc., Houston, Texas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging the submission, presentation, and
processing of grievances pursuant to the terms of a
collective-bargaining agreement, or in any other
manner discriminating against any of its employees in
regard to their hire, tenure, or any other terms and
conditions of employment.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the right to self-organization, to form labor
organizations, to join or assist Sales Drivers Local No.
949, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, to
bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such
activities, except to the extent that such right may be
affected by the proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer to Doulgas Kelley immediate and full
reassignment to his former runs without prejudice to
his seniority or other rights and privileges previously
enjoyed, and make him whole, in the manner
provided in The Remedy, for any loss of earnings
resulting from the discrimination against him.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
607
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its place of business in Houston, Texas,
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 23, after being duly
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS ALSO ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of
the Act not specifically found by the Board.
MEMBER KENNEDY, dissenting:
I would affirm the Trial Examiner's Decision in this
matter. In my view the record supports the conclusion
of the Trial Examiner that Respondent did not violate
Section 8(a)(I) and (3) of the Act by discontinuing its
periodic offer of the League City run to Douglas
Kelley. I find insufficient evidence to warrant the
conclusion that the Employer's failure to offer the run
to Kelley constituted unlawful discrimination. I am
unable to conclude from the record evidence that the
Employer's conduct was in any way motivated by a
desire to punish Kelley for having invoked the
grievance procedure. Unlike the situation in Metrome-
dia, Inc. (KLAC), 182 NLRB No. 37, cited by the
majority, this is not a case where the Employer is
desirous of ridding itself of the Union or of an
individual having instigated a grievance resulting in
an award unfavorable to the Employer.
4 In the event that 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
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 having found,
after a trial, that we violated Federal law by taking
reprisals against an employee for presenting and, with
the help of the Union, successfully processing a
grievance through arbitration:
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discriminate against any employ-
ee for engaging in union activities.
WE WILL offer Douglas Kelley reassignment to
his former overload League City-Rosenberg-
Wharton run, and pay him for the earnings he lost
as a result of our discontinuance of periodic
assignments to this run because of his successful
grievance, plus 6 percent interest.
WE WILL NOT unlawfully interfere with our
employees' union activities.
MRS. BAIRD'S BAKERIES,
INC.
(Employer)
Dated By
(Representative) (Title)
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Texas corporation, with its principal
office and place of business at Houston, in that State, is
engaged in the business of baking and selling bread,
pastries, and related products. During the 12 months prior
to issuance of the complaint, a representative period, the
Respondent, in the course and conduct of its business
operations, purchased flour and pastry ingredients valued
in excess of $ 50,000 which purchases were shipped to its
place of business at Houston, Texas, directly from points
outside that State. Upon the foregoing findings, the
Respondent concedes, and the Trial Examiner finds, that
Mrs. Baird's Bakeries, Inc., is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Dallas-
Brazos Building, Fourth Floor, 1125 Brazos Street,
Houston, Texas 77002, Telephone 713-226-4296.
TRIAL EXAMINER'S DECISION 1
STATEMENT OF THE CASE
ROBERT E . MULLIN, Trial Examiner: This matter was
heard on December 17, 1969, in Houston, Texas. The
complaint 2 presents questions as to whether the Respon-
dent violated Section 8(a) (1), (3), and (5) of the National
Labor Relations Act, as amended. In its answer , duly filed,
the Respondent conceded certain facts with respect to its
business operations, but it denied all allegations that it had
committed any unfair labor practices.
At the hearing the General Counsel, the Respondent, and
the Charging Union were represented by counsel. All
parties were given full opportunity to examine and cross-
examine witnesses, to introduce relevant evidence, and to
file briefs. A brief was submitted by the Respondent on
January 22, 1970, and by the General Counsel on January
23, 1970.
Upon the entire record in the case, including the briefs of
counsel, and from his observation of the witnesses, the Trial
Examiner makes the following:
1 The name of the Respondent as it appears in the caption of the
complaint is "Mrs. Baird's Baking Company " In a pre-trial order denying
a motion for summary judgment , Trial Examiner Schneider commented on
the fact that, notwithstanding this caption, the Respondent identified itself
as "Mrs. Baird's Bakeries , Inc " Sometime later the Regional Director
issued a notice of hearing wherein the latter corporate title appeared in the
caption The same corporate name has been used by the Respondent and
the General Counsel in all pleadings filed thereafter and in the briefs which
have been submitted to the Trial Examiner . Although no motion to amend
the caption has been made , the Trial Examiner will treat the conduct of the
parties as the equivalent of such action and hereinafter in this decision the
Sales Drivers Local No. 949, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called Union, is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
At all times material herein the Union has been the duly
designated and exclusive representative of all bakery
salesmen , extra men, route pullers, relay drivers, junior
supervisors, and supervisors at the Respondent's Houston
plant. It was conceded by all the parties, and the Trial
Examiner finds, that the aforesaid grouping of employees is
an appropriate unit for collective-bargaining purposes and
that the Union has been the majority representative of the
employees within this unit for many years. During the
period in question the Respondent and the Union were
parties to a collective bargaining agreement which provid-
ed, inter alia, for final and binding arbitration as the last
step in the resolution of grievances.3
On about April 24, 1967, the Union filed a grievance on
behalf of Douglas Kelley, a driver in the unit, wherein it
was alleged that the employee was entitled to extra pay for
the performance of certain work on a particular run.4 On
March 7, 1968, Arbitrator Thomas T. Purdom issued his
opinion and award (herein known as the Purdom Award)
wherein he found that Kelley was entitled to extra pay for
work on a particular run. The Respondent expressed its
disagreement with the conclusion of the arbitrator but,
complied with the back pay provisions as to Kelley.
On November 28, 1968, Arbitrator Purdom issued an
Respondent will be referred to as "Mrs Baud's Bakeries, Inc."
2 The complaint was based on a charge filed on September 9, 1968, and
an amended charge filed on December 10, 1968.
3 By its terms, this agreement was to be effective from July 15, 1965,
until July 15, 1970, and thereafter until a new contract was executed. It
should also be noted that the Respondent has been, for some time, a
member of a multiemployer bargaining group which includes, besides the
Respondent , four other bakeries in the Houston area.
4 At the same time , the Union also filed a grievance on behalf of one
Loreza Spencer, another employee . However , the case of the latter named
employee is not involved in the present proceeding.
MRS. BAIRD'S BAKERIES
extensive addendum, or supplement, to his original award
which was entitled "Correction of Clerical Error."
On December 11, 1968, the Respondent filed a motion in
the District Court of Harris County, Texas, to vacate the
aforesaid award, and its supplement. On January 20, 1969,
the Union filed a petition to remove the action which
Respondent had begun in the state court to the United
States District Court for the Southern District of Texas.
This motion was granted and at the time of the unfair labor
practice hearing, the civil suit initiated by the Respondent
was still pending in the United States District Court.
The complaint in this case was issued, initially, on
February 10, 1969. Sometime thereafter, and subsequent to
the filing of an answer by the Respondent, the General
Counsel moved for judgment on the pleadings. This motion
was referred to Trial Examiner Charles W. Schneider who,
on May 20, 1969, issued an order denying the General
Counsel's motion.
On September 4, 1969, the Charging Union filed a motion
with the Chief Trial Examiner requesting that he set the
complaint for hearing before a Trial Examiner, or, m the
alternative, find the Section 8(a) (1) and (3) violations of the
complaint and dispose of the Section 8(a) (5) allegations
separately. On September 26, 1969, Chief Trial Examiner
George Bokat issued an order denying the aforesaid motion
of the Charging Union.
On October 24, 1969, the Regional Director for Region
23 set this matter for a hearing on the complaint. As noted
earlier, on December 17, 1969, this hearing was held in
Houston, Texas, before the undersigned Trial Examiner.
B. The Facts
At the time of the hearing, Douglas Kelley, a relay
driver,5 had been in the Respondent's employ for about 10
years. He was also the union steward. As a relay driver,
Kelley had had, for some years, what was known as the
Bremond Cake Run, an assignment which consisted of a
regular run for 5 days of the workweek (Sunday through
Thursday), and an extra, or overload, runs on Thursday
night and on Friday night. As a relay driver, Kelley was not
paid by the hour, but was compensated instead at a flat rate
for a 5-day week. Compensation for extra runs was at the
rate of one-fifth of what the relay driver received for a 5-
day week. The length of an extra run varied from 4 to 8
hours, but the driver's compensation remained the same
irregardless of the number of hours involved. The extra run
which Kelley had on Thursday and Friday nights was
known as the League-City Rosenberg-Wharton run (herein
League City) because it involved delivering bread and
pastries to those particular cities in the Houston area. Prior
to the period in question, Kelley's duties on this run
required that he make one round trip on Thursday night
and again on Friday night from the Houston bakery to
warehouses in these three cities and then back to Houston.
S As a relay driver, Kelley drove a tractor and trailer from the
Respondent 's bakery in Houston to various warehouses which the
Company had in the outlying area . From these warehouses the retail
drivers secured their supplies of bread and pastries.
6 An extra , or overload, run was a run in addition to the regular run on
a route Customarily, it was assigned on a Thursday or Friday Normally,
there were no such runs on any other day of the week.
7 As noted earlier, a grievance similar to Kelley's, filed at the same time
609
For this he received $19, or one-fifth the weekly rate set by
the collective bargaining agreement for his regular work on
the Bremond Cake run.
Sometime in April 1967, the Respondent initiated the
practice of requiring that Kelley make the League City
extra run in two trips, instead of only one. Under this new
schedule Kelley left the Houston plant with the first load of
bread and delivered it to a warehouse in League City.
Thereafter he returned to Houston and secured a second
load of bread which he delivered to Rosenberg and
Wharton and then returned to Houston. Kelley testified
that initially this run required about 5 hours and 20 minutes
for him to complete, but that after he was ordered to make
it in two trips the amount of time on duty was extended to
almost 8 hours a night. On the ground that under the
contract the entire night's work constituted but one extra
run, the Respondent continued to pay Kelley $;19, the same
amount which it had given him when he had been making
these deliveries in one trip instead of two.
On April 24, 1969, the Union notified the Company that
Kelley had filed a grievance alleging that he was being
required to pull a double run for one day's pay. It was this
grievance which eventually went to arbitration and resulted
in the award of Arbitrator Purdom that Kelley was entitled,
under the contract, to double pay, or $'38, for the League
City run.7
Upon being served with a copy of the arbitrator's
decision, the Respondent announced that it considered the
award as applying only to Kelley, insofar as he had the
League City run, and that it would comply with the
backpay provisions. Kelley testified that thereafter Plant
Manager John Krippel gave him a check to cover the back
wages involved and told him that the Company considered
the terms of the award as applying solely to him [Kelley]
personally. Subsequent to the issuance of the arbitrator's
decision, Kelley was not given the League City run. Instead
he was offered, and accepted, what was known in the
record as the Navasota-Madisonville and Huntsville Runs
For driving the Navasota Run, Kelley received $19. In the
meantime, the Respondent did not alter its practice with
respect to pay for the League City run. At the hearing the
Respondent stipulated that all drivers who pulled this latter
run, both prior to and since the arbitrator's award have
been paid uniformly at $119 per run.
After the issuance of the arbitration award the Respon-
dent offered assignments on the League City run to other
drivers, but never to Kelley. All of these other drivers were
paid $19 when on that route.At the hearing, Day explained
that the Respondent considered it a practical impossibility
to maintain good employee relations if Kelley received $ 38
each time he drove that run while other employees who
drove it received'only $19. The general manager testified that
to avoidthisproblemas to driver morale, subsequent to receipt
of the,arbitrator's decision Kelley was offered the Navasota
by Spencer, a fellow employee , was also acted on by Arbitrator Purdom.
The General Counsel, however, has not seen fit to make the Spencer matter
an issue in the present proceeding.
a Wallace Day, general manager of the Company's Houston plant,
testified that , as a relay driver, Kelley was "offered" the Navasota run
rather than "assigned" to it, since he had the right to refuse any extra runs
on which he did not prefer to go.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
run each week rather than the one to League City. On the
other hand, it is apparent from pay records offered in
evidence by the Respondent that Kelley' s earnings have not
suffered. Since 1968 Kelley has continued to receive a
substantial number of regular and extra runs and has
averaged a combined total of 6.5 per week. Only two other
drivers exceeded this average and they did so by a very
slender margin . These drivers were named Shields and
Blakely. Their averages were 6.7 and 6.6 runs per week,
respectively. Both of them, like Kelley, were union
members on checkoff.
At the hearing the General Counsel conceded that on an
annual basis Kelley has made more money than any of the
other drivers, and in his brief he likewise conceded that the
record contains no evidence of union hostility on the part of
the Respondent.
C. The Issues and Concluding Findings
In his brief the General Counsel contends that the
arbitration award became a part of the collective bargain-
ing agreement , that it applied to all drivers on the League
City run, and that the Respondent's failure to comply with
the award in this respect constituted a unilateral effort to
modify the contract, in violation of Section 8(a) (5) and (1)
of the Act. The General Counsel further contends that
subsequent to the issuance of the arbitral award the
Respondent also violated Section 8(a) (3) by discontinuing
its periodic offer of the League City run to Kelley.
The Respondent contends that the allegations of the
complaint, even if true, constitute no more than contractual
violations upon which no unfair labor practice findings
should be predicated.
In his brief the General Counsel concedes that at the
arbitration hearing the Union sought, but failed to secure,
an award that would be of general application to all runs
under the contract. At the same time the General Counsel
contends that the terms of the award apply not only to
Kelley, but to all drivers assigned to the League City run.
The holding of Arbitrator Purdom's decision is not as
manifest as the General Counsel would prefer to believe. It
is clear that the Union failed in an attempt to get a ruling
that would apply not only to the League City run, but to all
similar assignments .9 The arbitrator's opinion is extended
and discursive and some of the language is ambiguous. The
original award issued on March 7, 1968, was 21 pages in
length. A section of this award which proposed a formula
for computing Spencer's pay under the contract led to a
further dispute between the Company and the Union. As a
9 In denying the Union's request for such a holding, Arbitrator Purdom
stated*
If the Union wishes a bush whacking broadside holding that the
employer cannot unilaterally change the workday or workweek, it
would have to first present evidence to justify such a holding with
respect to each route and the employee thereon I have held all I
expect to hold and that is that in the case of grievances of Kelley and
Spencer they must be paid for the substantial changes in Mr. Kelley's
overloads and in Mr Spencer 's regular run.. . (Award, p. 18)
In view of the Union's brief, the undersigned feels that he must
make it abundantly and boredom clear that he is not restricting the
exercise of management 's right to control the method of operation and
to direct the working force . All the undersigned is holding is that when
worktime and job content on Spencer's regular run was substantially
increased the Company has got to pay him for it and in the case of
result the Union quested a clarification of these terms.
Thereupon, the arbitrator engaged in an exchange of
correspondence with the parties in which the Company
held to the premise that the arbitrator exhausted his
authority, upon issuance of the award, and thereafter had
no power to take any further action with respect to the case.
On November 27, 1968, the arbitrator issued a 13 page
document that was captioned "Correction of Clerical
Error" wherein he sought to resolve the dispute which had
arisen subsequent to issuance of the award. Shortly
thereafter, the Respondent filed a motion to vacate both the
original award and the "Correction of Clerical Error,"
alleging, in support of this motion, that the arbitrator was
acting ultra vires in issuing an erratum, and that the original
award was null and void since the arbitrator had modified
the terms of the collective bargaining agreement of the
parties and, in so doing, had gone beyond the scope of his
authority.10 As noted earlier, the issues raised by the
Respondent's motion to vacate are currently pending
before a United States district court.
It is evident that the principal issues in this case involve a
dispute as to the interpretation of the terms of a collective
bargaining agreement and an alleged breach thereof by the
Respondent. Preliminarily, it should be noted that the
Board clearly has the authority to interpret collective
bargaining agreements to determine whether an unfair
labor practice was committed,ii and the Board is not
divested of jurisdiction to remedy an unfair labor practice
because the conduct complained of may also have violated
the terms of a collective-bargaining agreement. Section
10(a) of the Act.12 On the other hand, it is well settled that a
breach of contract is not ipso facto an unfair labor practice.
Association of Employees v. Westinghouse Corp., 348 U.S.
437, 443, fn. 2. Nor is the Board the proper forum for the
case that is essentially a contract dispute and where the
parties are seeking an interpretation of their collective-
bargaining agreement. Thus, in United Telephone Company
of the West, 112 NLRB 779, where the Board considered
issues comparable to those involved here, it stated (at p.
781): "Regarding the question of which party correctly
interpreted the contract, the Board does not ordinarily
exercise its junsdiction to settle such conflicts. As the Board
has held for many years, with the approval of the courts:
. . it , will not effectuate the statutory policy . . . for the
Board to assume the role of policing collective contracts
between employers and labor organizations by attempting
to decide whether disputes as to the meaning and
administration of such contracts constitute unfair labor
practices under the Act." (Citing Consolidated Aircraft
Mr. Kelley when an additional overload was added he has got to be
paid for it. (Award, p. 20)
io It is significant that in a later award which involved a similar problem
at another bakery under the same contract , Arbitrator Joseph A. Jenkins
held that, in certain respects , Arbitrator Purdom had relied on an
interpretation of the collective-bargaining agreement which constituted a
modification of the contract and, that in so doing , the latter had acted
beyond the scope of his authority
ii N.LR B. v. C & C Plywood Corp, 385 U.S. 421, 427-428; N.LR B v.
Strong Roofing & Insulating Co., 393 U.S. 357, 360-361; Huttig Sash & Door
Company, Inc., 154 NLRB 811, 817 , enfd. as modified 362 F.2d 217 (C A.
4), see also * Mastro Plastics Corp. v MLR B., 350 U.S. 270.
12 In Strong Roofing, the Court stated "in some circumstances the
authority of the Board and the law of the contract are overlapping,
concurrent regimes, neither preempting the other ." (Ibid, at p 360).
MRS. BAIRD'S BAKERIES
Corp., 47 NLRB 694, enfd. 141 F.2d 364 (C.A. 9), and
Crown Zellerbach Corp., 95 NLRB 753). In Consolidated
Aircraft, where the Board reached the same conclusion as in
United Telephone, the Board considered relevant the fact
that the unilateral decisions complained of as being unfair
labor practices were not "part of a conscious campaign on
[respondent's ] part to undermine the authority and prestige
of the Union as the collective bargaining representative of
the respondent's employees or to evade the respondent's
obligation to recognize and deal with the Union as such
representative." Consolidated Aircraft, supra, at p. 705. See
also: Vickers, Incorporated 153 NLRB 561, 570-571-
Central Illinois Public Service Company, 139 NLRB 1407,
1419; Old Line Life Insurance Company of America, 96
NLRB 499, 500.
In other cases, where a dispute arose over the construc-
tion of a collective-bargaining agreement, and there was no
showing of union animus or that the employer was acting in
bad faith in adhering to its interpretation, the Board had
held that there was no violation of Section 8(a) (5) and (1)
of the Act. National Dairy Products Corporation, 126 NLRB
434, 435. Similarly, in Morton Salt Company, 119 NLRB
1402, 1403, the Board stated ..it will not effectuate the
policies of the Act for [the Board] to police collective-
bargaining agreements by attempting to resolve disputes
over their meaning or administration, particularly where it
is evident, . . . that the Respondent acted reasonably and
in good faith." Likewise, in this line of cases, where the
parties have stipulated in their bargaining contract to a
provision for final arbitration of grievances arising out of
interpretation or application of the contract's provisions,
the Board has held that to intervene in such disputes would
frustrate the Act's policy of promoting industrial peace
through collective-bargaining. Montgomery Ward & Co.,
Incorporated 137 NLRB 418, 422-423; Hercules Motor
Corporation, 136 NLRB 1648, 1651-52. In these cases, the
Board has stated that it would better serve the policy of the
Act to require that the parties give "full play" 13 to the
grievance procedure they have agreed upon.
13 Hercules Motor Corporation, supra 1652, citing United Steelworkers of
America v. American Manufacturing Co, 363 U.S. 564, 566
14 Of course , the Board could defer action on at least the Sec . 8(a) (3)
allegations of the complaint , until a final judgment is had on the validity of
611
Here, as found earlier, the General Counsel conceded the
absence of union animus or hostility on the part of the
Respondent. The Union and the Company have been
parties to a collective-bargaining relationship over a
substantial period of time, and their current collective-
bargaining agreement has a provision for final and binding
arbitration of any disputes. After that process was invoked
in the present instance, the correctness of the arbitrator's
award and his subsequent addendum to that decision
became the subject of litigation in the United States district
court that is still unresolved.
Under the circumstances present here, it is the conclusion
of the Trial Examiner that this is a case where the teaching
of United Telephone and related decisions, cited supra, is
most applicable and that it would not effectuate the policy
of the Act for the Board, in the instant case, to decide
whether the Employer's conduct in a dispute over the
meaning and administration of a collective-bargaining
agreement constitute unfair labor practices within the
meaning of the Act. Accordingly, the Trial Examiner
concludes and finds that the complaint should be dismissed
in its entirety.14
CONCLUSIONS OF LAW
1. Mrs. Baird's Bakeries, Inc., is engaged in commerce
and the Union is a labor organization, all within the
meaning of the Act.
2. The General Counsel has failed to establish by a
preponderance of the evidence that the Respondent has
engaged, or is engaging, in the unfair labor practices which
are alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and on the entire record in this case, the
Respondent's motion to dismiss the complaint in its
entirety is granted.
the Purdom Award. Dubo Manufacturing Corporation, 142 NLRB 431, 432-
433; 142 NLRB 812; and 148 NLRB 1114 It should be noted, however,
that Dubo involved a mass discharge of employees, and presented issues
substantially different from those in the instant case