Packerland Packing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1975

216 N.L.R.B. 841 (N.L.R.B. 1975)

PACKERLAND PACKING COMPANY 841
Packerland Packing Company , Inc. and Local 248,
Amalgamated Meat Cutters and Butcher Work-
men of North America , AFL-CIO. Case 30-CA-
2743
March 4, 1975
ORDER DENYING MOTIONS
By MEMBERS FANNING, KENNEDY, AND
PENELLO
On October 11, 1974, Administrative Law Judge
John P. von Rohr issued his Decision in the above-
entitled proceeding, recommending that the com-
plaint be dismissed and the dispute be deferred to the
grievance-arbitration procedures of the collective-
bargaining contract between the Union and the
Respondent under the principles set forth in Collyer
Insulated Wire, A Gulf and Western Systems Co., 192
NLRB 837 (1971). Thereafter, the case was trans-
ferred to the Board in Washington, D.C.
On October 31, 1974, the General Counsel and the
Union each filed a motion to reopen the record and
to remand the case to the Administrative Law Judge
for the receipt of newly discovered evidence. There-
after, the Respondent filed a "motion" in opposition
to the motions of the General Counsel and the
Union.
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.
Upon the entire record in this proceeding, includ-
ing the motions and briefs of the parties, the Board
finds as follows:
Respondent has meat packing plants in Green Bay,
Wisconsin; Chippewa Falls, Wisconsin; and Pampa,
Texas. The present proceeding involves only the
plant in Green Bay. Since 1970, the Union has been
the certified bargaining representative of the pro-
duction and maintenance employees at the Green
Bay plant. The relevant collective-bargaining con-
tract at this plant, effective from June 1, 1971, to
February 28, 1975, con tains a dues-checkoff provi-
sion . In September 1973, the Union's International
and an affiliated local began an economic strike
against Respondent's Chippewa Falls plant. In
support of that strike, the International and its locals,
including the Union, engaged in a consumer boycott
against Respondent's products, including those
produced at the Green Bay plant. In retaliation,
Respondent discontinued the dues checkoff claiming
that the boycott was a violation of the Union's
contract undertaking not to engage in a strike
stoppage, slowdown, or suspension of work.
216 NLRB No. 128
The complaint alleged that by refusing to honor the
contract checkoff provision , Respondent violated
Section 8(a)(5) and ( 1) of the Act. In its defense,
Respondent contended initially that the dispute
should be deferred to the contract grievance -arbitra-
tion machinery in accord with the teaching of Collyer
Insulated Wire, 192 NLRB 837 (1971).
The Administrative Law Judge reviewed Respond-
ent's history and found that , aside from a representa-
tion proceeding , Respondent has been involved in
two cases wherein a Board order has been entered.
The first of these occurred prior to the Union's
certification and merely involved Board approval of
a settlement stipulation which had been arrived at by
agreement of the parties . In the sole unfair labor
practice case to be brought to a hearing before the
Board , Packerland Packing Company, Inc., 203
NLRB 198 (1973), the Board found one independent
violation of Section 8(a)(1) of the Act and also that
Respondent had discriminatorily assigned two em-
ployees to different positions in violation of Section
8(a)(3) of the Act. In addition , the record shows an
arbitration award against Respondent with which
Respondent complied concerning Respondent 's fail-
ure to honor the Union 's request to deduct an extra
$1 in addition to the regular monthly union dues for
3 months . The arbitrator added a special note to his
award to the effect that the "Company had an honest
difference of opinion as to the meaning of the
contract as respects its duty to checkoff dues."
Finally , at the hearing herein , Respondent's plant
manager stated that Respondent is willing to have
the dispute herein taken to arbitration.
Based on the foregoing , the Administrative Law
Judge agreed with Respondent's contention that the
dispute should be deferred to the available dispute-
solving machinery . He stated:
Applying the test set forth in United Aircraft
Corporation, supra [204 NLRB 879 (1973) ], and as
more fully explicated therein , I am persuaded and
find that the combination of Respondent's past
and presently alleged misconduct does not appear
to be of such character as to render the use of the
available dispute solving machinery to be un-
promising or futile.
In their motions, the General Counsel and the
Union argue that the record should be reopened to
receive four items of evidence, allegedly discovered
subsequent to the hearing before the Administrative
Law Judge , which in the opinion of the moving
parties demonstrate Respondent's enmity toward
employee and union rights and, together with the
evidence already in the record, justify nondeferral to
the contract grievance-arbitration machinery. The
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
items of evidence which the moving parties would
introduce are as follows:
(a) An arbitration award by Arbitrator Lewis E.
Solomon issued August 22, 1974, reducing from 7 to
5 days Respondent's suspension of employee Kruse
and directing Respondent to give him 2 days'
backpay.
(b) An arbitration award by Arbitrator Howard
Bellman issued on October 8, 1974, reducing from 30
to 7 days Respondent's suspension of employee
Samuelson and directing Respondent to make
Samuelson whole for any loss of pay he suffered in
excess of 7 days.
(c) On September 13, 1974, a complaint and notice
of hearing issued against Packerland Packing Co. of
Texas, Inc., a subsidiary of Respondent, charging
said Company with violating Section 8(a)(1) and (2)
of the Act.
(d) On September 4, 1974, Respondent initiated a
civil action against the Union alleging that the Union
had damaged Respondent's business by engaging in
a consumer boycott against Respondent.
In support of the motions, the moving parties also
submitted an affidavit of Vic Bobrowicz, business
agent for the Union, who states that he contacted
Respondent with respect to compliance with the
above arbitration awards and was told that Respond-
ent would not comply with either.
In its answer to the motions, Respondent asserts
that the allegations concerning Packerland Packing
Company of Texas, Inc., are not newly discovered
evidence since the complaint is based on unfair labor
practice charges filed on July 3, 1974, more than a
month before the hearing in the present case, and in
any event are irrelevant. As to the arbitration
proceedings, Respondent admits that there was a
delay in complying with the arbitration award
concerning employee Kruse, but, according to the
affidavit of Respondent's attorney, asserts that Kruse
has been paid and that the delay was the result of an
ambiguous stance by Union Agent Bobrowicz
concerning deferred implementation of the award
until a subsequent proceeding against Kruse was
decided. As to the Samuelson arbitration award,
Respondent's attorney in his affidavit states that he
believes that the arbitrator failed to consider rele-
vant, uncontroverted evidence, that the award was in
error, and that Respondent intends to appeal it to the
court. Respondent's attorney further states in his
affidavit that should the decision on appeal sustain
the arbitrator the award will then be timely imple-
mented. As to the state court proceeding, Respond-
ent's attorney states that it is intended to allege a
cause of action based on state laws unrelated to the
National Labor Relations Act, as amended, or
Section 301 of the Labor Management Relations Act.
We agree with the contention of Respondent that
the admission of the evidence relied upon by the
General Counsel and the Union in their motions
would not require modification of the Administrative
Law Judge's decision to defer the dispute over
discontinuance of dues checkoff to the grievance-
arbitration machinery in accordance with the man-
date of Collyer.
As to the complaint issued against a subsidiary of
Respondent and involving a different plant of
Respondent, we deem it irrelevant on two grounds:
(1) it pertains to a different plant of Respondent, and
(2) it proves nothing since a complaint merely
reflects a belief of the General Counsel that a
respondent has committed an unfair labor practice;
it is for the Administrative Law Judge hearing the
case and the Board on review to determine whether
the General Counsel is correct.
As to the arbitration proceedings, in both cases the
arbitrators upheld Respondent's contention that the
employees involved had violated work rules and were
deserving of censure, but ruled that the discipline
meted out was too severe and so reduced the number
of days for which the employees were penalized. The
affidavit of Respondent's attorney, which has not
been challenged, states that the 2 days' backpay due
to employee Kruse under the arbitration award
involving him has been paid and that the delay was
due to a misunderstanding. As to the Samuelson
award, Respondent asserts , and its good faith is not
challenged, that it believes the arbitrator erred in his
award and it intends to challenge the award in the
courts as it has a legal right to do; but it also states
that it will promptly comply with the award if its
appeal is rejected. We do not believe that Respond-
ent's record in these two arbitration proceedings
indicates that deferral to arbitration in the present
proceeding is either unpromising or futile.
Finally, we can perceive no relevancy to the
deferral issue in the fact that Respondent has chosen
to file a civil suit in a state court for what it believes
was actionable conduct under state law.'
In United Aircraft Corporation (Pratt & Whitney
Division; Hamilton Standard Division), 213 NLRB
No. 22 (1974), the Board majority stated:
As we noted in United Aircraft Corporation,
supra, if there is effective dispute-solving machin-
ery available, and if the combination of past and
presently alleged misconduct does not appear to
be of such character as to render the use of that
machinery unpromising or futile, then we ought
not to depart from our usual deferral policies.
I Cf. United Aircraft Corporation (Pratt and Whitney Division), 192 NLRB 382,384 (1971).
PACKERLAND PACKING COMPANY
We conclude that the additional evidence which
the General Counsel and the Union seek to introduce
is not sufficient either alone or together with the
other evidence in the record to establish that
requiring the parties to submit their present dispute
to the contract grievance-arbitration procedure will
be either unpromising or futile.
In any event, we note that the Board will retain
jurisdiction to reopen the case in the event that
Respondent engages in foot dragging, or the disposi-
tion in the arbitration proceeding is irregular or
repugnant to the policies of the Act.
Accordingly, we shall deny the motions to reopen
the record.
ORDER
It is hereby ordered that the motions of the
General Counsel and the Union to remand the
instant case to the Administrative Law Judge for the
purpose of reopening the record and receiving
additional evidence be, and they hereby are, denied
as lacking in merit.2
MEMBER FANNING, dissenting:
Contrary to my colleagues, I would grant the
motions of. the General Counsel and the Union to
remand the instant case to the Administrative Law
Judge, who conducted the hearing on August 19 and
20, 1974, and to reopen the record for the purpose of
receiving newly discovered evidence bearing upon
the issue of whether Respondent engaged in conduct
which will render the use of the arbitration process
unpromising or futile.
As stated in the majority opinion, the Administra-
tive Law Judge in his Decision recommended
dismissal of the complaint which alleged that
Respondent violated Section 8(a)(5) and (1) of the
Act by its unilateral refusal to honor the checkoff
provision in its collective -bargaining agreement with
the Union.3 The Administrative Law Judge noted
Respondent' s willingness to utilize arbitration to
resolve its dispute with the Union and rejected the
contention of the General Counsel that the Board
should deny deferral to arbitration because of
Respondent's history of interference with employee
rights . In so holding, the Administrative Law Judge
invoked the United Aircraft test4 which requires a
review of the "past conduct and present allegations
of misconduct" of Respondent to determine whether
2 Following the filing of the motions , the Board granted indefinite
extensions for filing exceptions to the Administrative Law Judge 's Decision
and supporting briefs. Exceptions to the Decision and supporting briefs will
now be due in Washington , D.C., on or before 20 days from the date of this
Order.
3 Respondent discontinued the checkoff because the Union engaged in a
consumer boycott against Respondent in furtherance of a strike by a sister
local. In this connection , note the following statement of Respondent's
843
the parties' own arbitration procedures will effective-
ly resolve the current dispute in a prompt and fair
manner.
However, as indicated above, the General Counsel
and the Union thereafter filed remand motions to
permit the introduction of newly discovered evidence
which they contend "clearly demonstrates Respond-
ent's enmity toward employee and union rights." In
support of their motions, they refer to the following
posthearing developments that should be "weighed
with the existing record evidence":
On August 22, 1974, Arbitrator Lewis E. Solomon
issued an award which reduced from 7 to 5 days
Respondent's suspension of employee Richard Kruse
and ordered 2 days' backpay for him.
On October 8, 1974, Arbitrator Howard Bellman
reduced employee Peter Samuelson's 30-day suspen-
sion to 7 days and directed that Samuelson be made
whole for any loss in pay he suffered in excess of 7
days.
On October 18, 1974, the Union's representative,
Vic Bobrowicz, filed an affidavit stating that he was
told by Respondent that it could not comply with
either award.
On September 4, Respondent filed in a Wisconsin
circuit court a complaint charging the Union with
damaging Respondent's business by taking part in a
consumer boycott against Respondent.
On September 13, a complaint was issued by the
General Counsel against the Texas subsidiary of the
Company in Case 16-CA-5657, alleging unlawful
assistance to and recognition of another labor
organization.
Respondent opposed the motions on the following
grounds:
(1) Although there was a delay in compliance with
the award concerning Kruse, the delay was a result
of the "ambiguous stance" of Union Representative
Bobrowicz regarding deferred implementation of the
award to Kruse until another arbitration proceeding
concerning him was decided.5
(2) Respondent intends to contest the award
respecting Samuelson as inconsistent with the terms.
of the collective-bargaining agreement.
(3) The action brought in a circuit court of the
State of Wisconsin seeks an injunction against the
Union and is outside the purview of the Federal law.
(4) No evidence has been submitted that the unfair
labor practices alleged in the complaint against
president in his letter dated April 25, 1972: "If you continue to insist on
setting up grievance and arbitration on matters that are clearly not subject
to arbitration , we will have to play the same game , and we will simply stop
collecting your dues for you."
4 United Aircraft Corporation, et al., 213 NLRB No. 22 ( 1974), and 204
NLRB 879 (1973).
5 According to an affidavit of Respondent counsel, a check was sent to
Kruse on November 7.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's Texas subsidiary have any relevance to
the instant case which involves Respondent 's Green
Bay, Wisconsin , plant.
The Board held in the United Aircraft cases that if
there appears to be a continuing pattern of efforts to
defeat the purposes of the Act and if the evidence
indicates that "the parties' own machinery is not
functioning smoothly ," the Board should not defer to
arbitration.
It is clear from an analysis of the new evidence
concerning the troubled relationship of the parties
and the poorly functioning arbitration procedures
that it would be useful in shedding further light on
the propriety of deferral . In view of the gravity
thereof, it is incumbent upon the Board to direct the
reopening of the record in order to enable the
Administrative Law Judge to consider and evaluate
the totality of the available evidence. In the interest
of fairness , the Board can do no less. To prohibit the
presentation of the proffered evidence, which may
well be critical in resolving the issues herein, is to
contravene the principle of due process.
In sum , the remand motions should be granted
because the newly discovered evidence appears
sufficiently serious to warrant reopening the record.