Wonder Bread

National Labor Relations Board - Board Decisions

Sep 29, 2004

343 N.L.R.B. 55 (N.L.R.B. 2004)

WONDER BREAD
343 NLRB No. 14
55
Wonder Bread, a Division of Interstate Brands Cor-
poration and Teamsters Local Union No. 334,
Sales & Service Industry. Case 30–CA–16456–1
September 29, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND MEISBURG
On July 28, 2003, the Regional Director for Region 30
issued a complaint and a notice of hearing in this pro-
ceeding alleging that the Respondent committed an un-
fair labor practice in violation of Section 8(a)(5) and (1)
of the Act. The Respondent filed an answer admitting in
part and denying in part the allegations of the complaint
and asserting affirmative defenses.
On April 2, 2004, the Respondent filed with the Board
a motion to dismiss the complaint, arguing that the Board
should defer the matter to the parties’ contractual griev-
ance-arbitration procedures. The General Counsel filed
an opposition to the motion, and the Respondent filed a
reply to the General Counsel’s opposition. On June 28,
2004, the Board issued an order transferring the proceed-
ing to the Board and Notice to Show Cause why the mo-
tion should not be granted. The General Counsel and the
Respondent each filed responses. The Charging Party
Union filed no opposition to either the motion to dismiss
or the Notice to Show Cause.
For the reasons set forth below, we grant the Respon-
dent’s motion to dismiss.
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing and refusing
to bargain with the Union before unilaterally requiring its
route sales representatives (RSRs) to submit to physical
examinations, including possible drug testing, pursuant
to regulations of the United States Department of Trans-
portation (DOT).
The undisputed statements in the pleadings and briefs
reveal that the Respondent, a distributor of baked goods,
has had a collective-bargaining relationship with the
Charging Party Union since the 1970s. Their most recent
collective-bargaining agreement, covering all sales repre-
sentatives, route riders, special delivery drivers, and
transport drivers in the Respondent’s employ, is effective
from May 12, 2002, through May 14, 2005.
On March 20, 2003, the Respondent notified the unit
employees of its intention to require the RSRs to submit
to physical examinations pursuant to DOT’s regulations.
Immediately following the Respondent’s implementation
of the physical examination requirement on April 14,
2003, the Union requested bargaining. Thereafter, the
Union filed a grievance, which is currently awaiting arbi-
tration. The Union filed an unfair labor practice charge
with the Board on May 1, 2003.
The parties’ collective-bargaining agreement provides
that “the Union recognizes that the management of the
plant, the methods of operation, and the direction of the
workforce is vested in the company except as specifically
modified by this Agreement.” See art. 6 (management
rights). The parties’ agreement includes a multistep
grievance and arbitration process which provides for
final and binding arbitration of “any difference . . . be-
tween the Company and the Union as to the interpreta-
tion or application of any provision of this Agreement.”
See art. 21 (grievance procedure).
The Respondent contends that the unfair labor practice
allegations should be deferred to the grievance-
arbitration procedure of the contract. The General Coun-
sel contends, however, that the matter is not appropriate
for deferral because the issue of whether the Respon-
dent’s conduct violated its statutory obligation to bargain
does not turn on a dispute over the interpretation of the
agreement’s terms, and therefore the dispute is not cog-
nizable under the parties’ grievance-arbitration provi-
sions.1
The Board has considerable discretion to defer to the
arbitration process when doing so will serve the funda-
mental aims of the Act. See Dubo Mfg. Corp., 142
NLRB 431 (1963); Collyer Insulated Wire, 192 NLRB
837 (1971); and United Technologies Corp., 268 NLRB
557 (1984). Deferral is appropriate when the following
factors are present: the dispute arose within the confines
of a long and productive collective-bargaining relation-
ship; there is no claim of employer animosity to the em-
ployees’ exercise of protected statutory rights; the par-
ties’ agreement provides for arbitration of a very broad
range of disputes; the arbitration clause clearly encom-
passes the dispute at issue; the employer has asserted its
willingness to utilize arbitration to resolve the dispute;
and the dispute is eminently well suited to such resolu-
tion. United Technologies, supra at 558.
Applying these factors, we agree with the Respondent
that deferral is appropriate. The parties have had a bar-
gaining relationship dating back several decades, the
Respondent has expressed a willingness to utilize the
grievance-arbitration process to resolve the instant dis-
pute, and the Union, by filing a grievance, has indicated

1 We reject the General Counsel’s additional contention that the in-
stant motion should be denied as untimely. The hearing, originally
scheduled for October 20, 2003, was thereafter rescheduled several
times. As of April 2, 2004, the date the motion to dismiss was filed, the
hearing had been rescheduled for July 8, 2004. Under the Board’s
Rules and Regulations, the motion was required to be filed 28 days
prior to the hearing date. See Sec. 102.24(b). Under these facts, we
conclude that the Respondent’s motion was timely.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD56
that the subject of the grievance is amenable to the griev-
ance-arbitration process. See E. I. du Pont & Co., 293
NLRB 896, 897 (1989). Moreover, there is no conten-
tion that the Respondent has been hostile to the exercise
of its employees’ protected statutory rights.
Notwithstanding, the General Counsel opposes defer-
ral on the ground that neither the management-rights
clause nor any other contract provision can reasonably be
interpreted as authorizing the alleged unilateral action.
We reject this argument. The question of the reasonable
interpretation of the collective-bargaining agreement is
one, at this point, for the arbitrator. The grievance-
arbitration clause is extremely broad, in that a grievance
can be filed with respect “to any difference . . . between
the Company and the Union as to the interpretation” of
the agreement and any grievance can be brought to arbi-
tration. So long as an interpretation of the agreement is
implicated, there appears to be no restriction on the sub-
ject matter of grievances that may be filed and pursued to
arbitration. In such situations, the Board defers. See,
e.g., Roy Robinson Chevrolet, 228 NLRB 828, 830
(1977) (quoting United Steelworkers v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582–583 (1960)) (if a
matter is otherwise suitable for deferral, deferral should
be ordered “unless it may be said with positive assurance
that the arbitration clause is not susceptible of an inter-
pretation that covers the asserted dispute”). Indeed, the
Board has held that Collyer prearbitral deferral of unfair
labor practice charges challenging unilateral changes is
appropriate even where no specific contractual provi-
sion’s meaning is in dispute.2
The Respondent’s reliance on the management-rights
clause has created a dispute as to the interpretation of the

2 See, e.g., Inland Container Corp., 298 NLRB 715 (1990) (unilat-
eral imposition of drug-testing program); E. I. du Pont & Co., 275
NLRB 693 (1985) (unilateral changes in certain work schedules); Stan-
dard Oil Co. (Ohio), 254 NLRB 32, 34 (1981) (fact that examination is
not pinpointed in contracts as a conceded management prerogative is
insufficient reason for disregarding proof, if any, that parties intended
to permit employer to give such tests when appropriate).
agreement. Deferral is appropriate regardless of whether
the Board would interpret the management-rights clause
as justifying the unilateral change at issue. See generally
Roy Robinson, supra. In any event, because we retain
jurisdiction pending issuance of the arbitrator’s decision,
which has not yet been rendered, our processes may al-
ways be reinvoked if the arbitral award is not susceptible
to an interpretation consistent with the Act or if it is in-
consistent with the standards of Spielberg Mfg. Co., 112
NLRB 1080 (1955).3
For all these reasons, we find that deferral of the mat-
ters alleged in the complaint is appropriate in this in-
stance, and we shall grant the Respondent’s motion to
dismiss the complaint.
ORDER
IT IS ORDERED that the complaint is dismissed, pro-
vided that: the Board retains jurisdiction of this proceed-
ing for the limited purpose of entertaining an appropriate
and timely motion for further consideration upon a
proper showing that either (a) the dispute has not, with
reasonable promptness after the issuance of this Order,
either been resolved by amicable settlement in the griev-
ance procedure or submitted promptly to arbitration, or
(b) the grievance or arbitration procedures have not been
fair and regular or have reached a result that is repugnant
to the Act.

3 Contrary to the General Counsel’s position, the Board has deferred
to arbitrators’ decisions finding that language in a general management-
rights clause authorizes an employer’s unilateral changes in terms and
conditions of employment. See, e.g., Hoover Co., 307 NLRB 524
(1992); Dennison National Co., 296 NLRB 169 (1989).