Anheuser-Busch, LLC

National Labor Relations Board - Board Decisions

May 22, 2019

367 NLRB No. 132 (N.L.R.B. 2019)

367 NLRB No. 132
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Anheuser-Busch, LLC and Matthew C. Brown and In-
ternational Brotherhood of Teamsters Local 947
and International Brotherhood of Teamsters,
Brewery and Soft Drink Workers Conference.
Case 12–CA–094114
May 22, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
On September 10, 2013, Administrative Law Judge
William Nelson Cates issued the attached decision. The

1 On September 25, 2015, General Counsel Richard F. Griffin, Jr.
issued a Notice of Ratification in this case and served it on the parties
and their representatives. On that same date, the General Counsel filed
a copy of the Notice of Ratification with the Office of the Executive Sec-
retary along with a letter requesting that the Notice of Ratification be
placed in the case record. The Notice of Ratification states, in relevant
part:
I was confirmed as General Counsel on November 4, 2013. After ap-
propriate review and consultation with my staff, I have decided that the
issuance of the complaint in this case and its continued prosecution are
a proper exercise of the General Counsel’s broad and unreviewable dis-
cretion under Section 3(d) of the Act.
*****
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
On October 9, 2015, the Respondent filed an Opposition to Notice of
Ratification challenging the General Counsel’s request to have the No-
tice of Ratification added to the case record. The Respondent moves to
strike the Notice of Ratification from the case record, arguing that there
is no authority for adding the ratification to the record. In the alternative,
the Respondent requests that its opposition be made part of the case rec-
ord. The General Counsel filed a Response to Respondent’s Opposition
to Notice of Ratification.
Having duly considered the matter, pursuant to Sec. 102.48(b) of the
Board’s Rules and Regulations we grant the General Counsel’s request
that the September 25, 2015 Notice of Ratification be made part of the
case record, and we grant the Respondent’s alternative request that its
Opposition be made part of the case record as well.
The Respondent also “moves for a Board Order requiring the General
Counsel to independently investigate this case and make an independent
decision to reissue or not issue a complaint alleging a violation of the
Act.” In light of Sec. 3(d) of the Act and the General Counsel’s Notice
of Ratification, the Respondent’s motion is denied.
2 The Respondent argues that the authority of the General Counsel
and Regional Director to investigate and prosecute this case lapsed dur-
ing the period when the Board lacked a valid quorum. We reject that
argument. See Burndy, LLC, 364 NLRB No. 77, slip op. at 1 fn. 2 (2016)
(citing Bloomingdale’s, Inc., 363 NLRB No. 172, slip op. at 2 (2016),
which explains that General Counsel’s authority derives from the Act,
not from power delegated by the Board), and Pallet Cos., a subsidiary of
IFCO Systems, N.A., Inc., 361 NLRB 339, 339 (2014) (agency staff en-
gaged in prosecution of unfair labor practices are directly accountable to
General Counsel), enfd. 634 Fed. Appx. 800 (D.C. Cir. 2015).
Respondent filed exceptions and a supporting brief, the
General Counsel and Charging Party each filed an answer-
ing brief, and the Respondent filed a reply brief. The Gen-
eral Counsel filed cross-exceptions and a supporting brief,
the Charging Party filed limited cross-exceptions, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record1
in light of the exceptions and briefs2 and has decided to
affirm the judge’s rulings, findings,3 and conclusions only
to the extent consistent with this Decision and Order.
I. FACTS AND ADMINISTRATIVE LAW JUDGE’S FINDINGS
Since April 2004, the Respondent has maintained a Dis-
pute Resolution Program (DRP). Employees subject to
The Respondent also argues that the investigation and prosecution of
this case is invalid because former Acting General Counsel Lafe Solo-
mon was not properly appointed under the Federal Vacancies Reform
Act of 1998 (FVRA), 5 U.S.C. §§ 3345 et seq. The Supreme Court held
in NLRB v. SW General, Inc. d/b/a Southwest Ambulance, 580 U.S. ___,
137 S.Ct. 929 (March 21, 2017), that, under the FVRA, Solomon’s au-
thority to take action as Acting General Counsel ceased on January 5,
2011, after the President nominated him to be General Counsel. Never-
theless, the General Counsel’s subsequent ratification renders moot the
Respondent’s argument that Solomon’s lack of authority after his nomi-
nation precludes further litigation in this matter.
The Respondent challenges the merits of the General Counsel’s rati-
fication on the basis that: (1) the FVRA violation is a structural error
that cannot be cured by de novo review; (2) the FVRA violation is a non-
harmless error; (3) the General Counsel’s ratification was perfunctory
and the “invalidly-issued unfair labor practice complaint” prejudiced the
Respondent; (4) there is nothing in the National Labor Relations Act that
vests the General Counsel with the authority to cure an invalidly issued
complaint; and (5) ratification so long after the issuance of the complaint
and the hearing makes the ratification “fruit of the poisonous invalidly-
issued complaint.” We reject these arguments for the reasons set forth
in American Baptist Homes of the West d/b/a Piedmont Gardens, 364
NLRB No. 13, slip op. at 7 fn. 19 (2016), reconsideration denied 364
NLRB No. 95 (2016), 2016 WL 4474794, appeal dismissed mem. on
procedural grounds 2016 WL 8648496 (D.C. Cir. Oct. 18, 2016, rehear-
ing en banc denied Jan. 9, 2017), petition for review in Ninth Circuit
stayed for mediation. See also 1621 Route 22 West Operating Company,
LLC v. NLRB, 725 Fed. Appx. 129, 137 (3d Cir. 2018) (finding General
Counsel’s ratification valid under “‘the presumption of regularity,’ by
which [courts] presume that public officials have properly discharged
their duties absent ‘clear evidence to the contrary’” (quoting United
States v. Chemical Foundation, Inc., 272 U.S. 1, 14–15 (1926))).
The Respondent also argues that it has been prejudiced by the General
Counsel’s delay in addressing its FVRA argument, alleging that it may
face increased backpay liability to the Charging Party as a result. But
“the Board is not required to place the consequences of its own delay,
even if inordinate, upon wronged employees to the benefit of wrongdo-
ing employers.” NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 265
(1969). In any event, this issue is moot in light of our dismissal of the
complaint.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the DRP must agree “to submit all covered claims” to the
DRP, “to waive all rights to a trial before a jury on such
claims, and to accept an arbitrator’s decision as the final,
binding and exclusive determination of all covered
claims.” The DRP defines “covered claims” to include
employment discrimination claims. By its terms, the DRP
applies “to all salaried and non-union hourly employees.”
Since about April 1, 2004, the Respondent has required
all job applicants, regardless of whether they are applying
for unit or non-unit positions, to complete and sign an em-
ployment application expressing their agreement to be
bound by the DRP in certain circumstances. In relevant
part, the employment application signed by Charging
Party Matthew Brown on June 16, 2004, states: “I
AGREE THAT IF I BECOME EMPLOYED BY THE
COMPANY, AND UNLESS A WRITTEN CONTRACT
PROVIDES TO THE CONTRARY, ANY CLAIM I
MAY HAVE AGAINST THE COMPANY WILL BE
SUBJECT TO FINAL AND BINDING ARBITRATION
IN ACCORDANCE WITH THE COMPANY’S
DISPUTE RESOLUTION PROGRAM, AND THAT
ARBITRATION WILL BE THE EXCLUSIVE
METHOD I WILL HAVE FOR FINAL AND BINDING
RESOLUTION OF ANY SUCH CLAIM.” (Jt. Ex. 2.)4
Brown worked for the Respondent from September
2004 until March 2010, first as a weekend worker and then
as an apprentice I, both bargaining-unit positions. The
collective-bargaining agreement between the Respondent
and the Union includes a grievance-arbitration procedure
different from the DRP,5 and the DRP does not apply to
employee claims against the Respondent that are covered
by the collective-bargaining agreement.
The Respondent terminated Brown’s employment on
March 11, 2010. On March 22, 2010, the Union filed a
contractual grievance claiming that Brown’s discharge
was not issued in a fair and impartial manner for just and
sufficient cause and constituted disparate treatment. On
March 30, 2010, Brown filed a charge with the Florida
Commission on Human Relations alleging that he was un-
lawfully discharged in retaliation for filing an earlier

Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
4 There is no allegation that the Respondent violated the Act by re-
quiring applicants, including Brown, to agree to final and binding arbi-
tration under the DRP (unless a written contract provides to the contrary)
as a condition of employment.
5 Contrary to the dissent’s apparent implication, however, the collec-
tive-bargaining agreement’s grievance-arbitration provision contains no
language explicitly making it “permissible” for employees to resort to
federal court proceedings after completing the contractually specified
process.
charge with the Commission asserting that a 2009 suspen-
sion was unlawfully based on race.
Brown’s discharge grievance advanced through the col-
lective-bargaining agreement’s grievance process.6 Ulti-
mately, the Multi-Plant Grievance Committee (MPGC)
upheld Brown’s discharge on May 3, 2010. On December
29, 2011, the EEOC issued Brown two “Notice of Right
to Sue” documents regarding the race discrimination and
retaliation charges he had filed with the Florida Commis-
sion on Human Relations. On April 3, 2012, Brown filed
a complaint against the Respondent in the U.S. District
Court for the Middle District of Florida alleging race dis-
crimination and retaliation in violation of Title VII.
On June 4, 2012, the Respondent filed with the district
court a Motion to Dismiss or Stay and to Compel Arbitra-
tion (“Motion to Compel”).7 (Jt. Ex. 12.) In support of
that motion, the Respondent’s primary argument was that
Brown was compelled to grieve and arbitrate his race dis-
crimination and retaliation claims under the collective-
bargaining agreement’s grievance-arbitration procedure.
In this regard, the Respondent cited two provisions of the
collective-bargaining agreement: Article 26, which pro-
vides, among other things, that neither the Respondent nor
the Union “shall discriminate against any individual be-
cause of race,” and Article 8, which sets forth the griev-
ance-arbitration procedure and defines a “grievance,” in
relevant part, as “any difference between the [Respondent]
and the employee covered by this Agreement . . . as to . . .
[a]ny . . . alleged violation of this Agreement by the [Re-
spondent].” Id. at 2. The Respondent argued to the court
that these two provisions, taken together, require Brown
to assert his race discrimination and retaliation claims un-
der the grievance-arbitration procedure contained in the
collective-bargaining agreement. Id. at 5–6. “Alterna-
tively,” the Respondent argued, “in the event the Court de-
termines that the CBA’s arbitration requirement does not
clearly and unmistakably apply to Brown’s race discrimi-
nation and retaliation claims, Brown also personally
agreed to arbitrate such claims upon signing his Employ-
ment Application with [the Respondent.]” Id. at 6–8.8
This was the first time that the Respondent suggested that
6 The parties’ collective-bargaining agreement contains a three-step
grievance procedure culminating in final and binding arbitration before
a Multi-Plant Grievance Committee, which consists of two members
each from the Respondent and the Union and a neutral member chosen
by the MPGC from a list of neutrals provided by the American Arbitra-
tion Association.
7 It appears that the court has not ruled on the Respondent’s motion
but has kept it “under advisement pending further developments in the
ULP proceedings.” Brown v. Anheuser-Busch, LLC, Case No. 3:12-cv-
365-J-32JBT (M.D. Fla.), Order dated Oct. 9, 2013.
8 We express no views regarding the merits of the arguments ad-
vanced by the Respondent in its Motion to Compel. Those issues are for
the court to decide, not the Board.
ANHEUSER-BUSCH, LLC 3
the DRP might apply to a former bargaining-unit em-
ployee, and it is undisputed that the Respondent never
gave the Union notice or an opportunity to bargain over
the potential application of the DRP to Brown.
Brown then filed an unfair labor practice charge with
the Board, and the Region issued a complaint, alleging that
the Respondent unilaterally applied the DRP to unit-
employee Brown, through its Motion to Compel, and
thereby violated Section 8(a)(5). After a hearing, the
judge found that the Respondent violated the Act as al-
leged, rejecting the Respondent’s argument that its con-
duct did not violate the Act because, at the time the Re-
spondent sought to apply the DRP to him, Brown was a
former employee and therefore no longer a member of the
bargaining unit. The judge’s recommended Order in-
cluded not only the standard cease-and-desist language for
a Section 8(a)(5) and (1) unilateral-change violation, but
also a recommendation that the Respondent be ordered to
withdraw the portion of its defense in Brown’s federal suit
that seeks to have the matter decided pursuant to the DRP.
II. ANALYSIS
In its exceptions before the Board, the Respondent re-
iterates its argument that Brown was no longer an em-
ployee or member of the bargaining unit at the relevant
time (and hence that it had no duty to bargain over his em-
ployment conditions), and it further argues that the judge’s
recommended Order violates its First Amendment right to
petition a federal court for redress. The General Counsel
and Charging Party contend that an order to withdraw the
defense is proper and that the Board should also order the
Respondent to reimburse Brown for his attorneys’ fees
and costs incurred in opposing the Respondent’s Motion
to Compel. As explained below, we conclude that the Re-
spondent’s Motion to Compel was an exercise of its First
Amendment right to petition that cannot be found unlaw-
ful under Board and Supreme Court precedent. Accord-
ingly, we reverse the judge’s finding of the 8(a)(5) and (1)
violation and dismiss the complaint.9
A. General Legal Principles
The Supreme Court has identified the “right to petition
as one of ‘the most precious of the liberties safeguarded

9 In light of our conclusion that the Petition Clause resolves this case,
a finding that does not turn on Brown’s employment status or member-
ship in the bargaining unit at the time the Motion to Compel was filed,
we need not address those issues. Further, our dismissal of the complaint
moots the General Counsel’s and Charging Party’s cross-exceptions
seeking additional remedies.
10 Although the Respondent’s Petition Clause argument is directed at
the appropriateness of the remedy, the analysis applies to the substantive
question—i.e., whether the Board can find the litigation unlawful, not
merely whether the Board can order the Respondent to cease pursuing it.
That fact is apparent not only from the language of Bill Johnson’s and
by the Bill of Rights.’” BE & K Construction Co. v.
NLRB, 536 U.S. 516, 524 (2002) (quoting Mine Workers
v. Illinois Bar Association, 389 U.S. 217, 222 (1967)). To
protect this essential right, the Supreme Court has placed
limits on the Board’s authority to find that a party’s litiga-
tion efforts constitute an unfair labor practice. See BE &
K, supra; Bill Johnson’s Restaurants v. NLRB, 461 U.S.
731 (1983).10 In general, the Board may make such a find-
ing only if the litigation is both baseless and brought with
the intent to retaliate against the exercise of Section 7
rights. Bill Johnson’s, 461 U.S. at 744 (rejecting the
Board’s position that a retaliatory lawsuit may be found to
violate the Act regardless of whether it had a reasonable
basis). See also BE & K Construction Co. v. NLRB, supra
(rejecting Board’s finding that unsuccessful and retalia-
tory lawsuit violated Act after it was completed); BE & K
Construction Co., 351 NLRB 451 (2007) (holding, after
Supreme Court remand, that filing and maintenance of
reasonably based lawsuit does not violate Act, regardless
of motive for bringing it).
Litigation that is not both baseless and retaliatory may
violate the Act only if it falls within one of the two excep-
tions recognized in footnote 5 of Bill Johnson’s. There,
the Court stated:
It should be kept in mind that what is involved here is an
employer’s lawsuit that the federal law would not bar
except for its allegedly retaliatory motivation. We are
not dealing with a suit that is claimed to be beyond the
jurisdiction of the state courts because of federal-law
preemption, or a suit that has an objective that is illegal
under federal law. Petitioner concedes that the Board
may enjoin these latter types of suits. Nor could it be
successfully argued otherwise, for we have upheld
Board orders enjoining unions from prosecuting court
suits for enforcement of fines that could not lawfully be
imposed under the Act….
Bill Johnson’s, 461 U.S. at 737 fn. 5 (emphasis added; cita-
tions omitted). Accordingly, only a legal filing that is
preempted by federal law or that has an illegal objective may
be found unlawful under the Act without a finding that it is
“baseless and retaliatory.”11 In his decision, the judge did not
BE & K but also from BE & K’s application of its analysis to completed
lawsuits, in which the remedy of an injunction would be essentially moot.
11 Despite some initial uncertainty about whether BE & K required
even preempted and illegal-objective lawsuits to meet the “baseless and
retaliatory” standard, the Board has held, with appellate court approval,
that the exceptions set forth in Bill Johnson’s footnote 5 were not altered
by BE & K. See Ashford TRS Nickel, LLC, 366 NLRB No. 6, slip op. at
3–4 (2018) (citing Can-Am Plumbing v. NLRB, 321 F.3d 145 (D.C. Cir.
2003), and Small v. Plasterers Local 200, 611 F.3d 483, 492 (9th Cir.
2010), for proposition that “BE & K did not affect the footnote 5 exemp-
tion in Bill Johnson’s”).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cite Bill Johnson’s or explain how his finding that the Re-
spondent violated the Act by filing its Motion to Compel in
federal district court is consistent with the First Amendment
principles on which that case rests.12
B. Application to this Case
The General Counsel contends that the Respondent’s
Motion to Compel falls within the Bill Johnson’s footnote
5 exception for lawsuits that have “an objective that is il-
legal under federal law.” Bill Johnson’s, 461 U.S. at 737
fn. 5. We disagree, for the reasons discussed below.13 Al-
though no party alleges that the Motion to Compel was
baseless and retaliatory under Bill Johnson’s and BE & K,
supra, in the absence of an exception from that analytical
framework, we must consider whether the Respondent’s
Motion to Compel may be found unlawful on the basis that
it is baseless and retaliatory. We conclude that it may not.
1. Illegal objective
The General Counsel has not clearly articulated how the
“illegal objective” exception applies here, and our review
of Board precedent uncovered no examples analogous to
this case. Rather, the Board has found an “illegal objec-
tive” where, for example, a court filing is contrary to a
prior Board award, see, e.g., Teamsters Local 776 (Rite
Aid), 305 NLRB 832, 835 (1991), enfd. 973 F.2d 230 (3d
Cir. 1992), cert. denied 507 U.S. 959 (1993), or where a
court filing seeks to enforce an unlawful policy or contrac-
tual provision, see, e.g., Truck Drivers Local 705 v. NLRB,
820 F.2d 448, 452 (D.C. Cir. 1987) (“If the grievance had
an unlawful objective, the contract provision sought to be
enforced must itself have been illegal.”) (emphasis in orig-
inal).14 Accord Elevator Constructors (Long Elevator),
289 NLRB 1095, 1095–1096 (1988) (contractual provi-
sion would violate Section 8(e) if union’s interpretation
were upheld; therefore, grievance seeking that interpreta-
tion had an illegal objective), enfd. 902 F.2d 1297 (8th Cir.
1990); Regional Construction Corp., 333 NLRB 313, 320
(2001) (in order to have illegal objective, respondent’s
motion “has to have involved a matter . . . which if granted
would commit the court to countenance an[] underlying

12 Plaintiffs are not the sole beneficiaries of the First Amendment right
to petition the government for redress of grievances. The right extends
to defendants as well. See Freeman v. Lasky, Haas & Cohler et al., 410
F.3d 1180, 1184 (9th Cir. 2005) (stating that “asking a court to deny
one’s opponent’s petition is also a form of petition”); In re Burlington
Northern, Inc., 822 F.2d 518, 532 (5th Cir. 1987) (“We perceive no rea-
son to apply any different [First Amendment protection] standard to de-
fending lawsuits than to initiating them.”).
13 No one contends, or could demonstrate, that this case falls within
the other exception identified in footnote 5 of Bill Johnson’s, litigation
that is preempted.
14 The Board relied on the same principle in Murphy Oil USA, Inc.,
361 NLRB 774, 793 (2014) (holding that Bill Johnson’s did not bar find-
ing and remedying violation in employer’s attempt, in court litigation, to
act by the Respondent which would be a violation of some
federal law”). As the above cases indicate, the enforce-
ment of a policy or contractual provision is not an illegal
objective if the policy or provision is not itself illegal.
Here, the DRP is not alleged to be facially unlawful.
The sole violation alleged is the manner in which the Re-
spondent sought to apply it to Brown, i.e., by filing a mo-
tion in court without giving the Union notice and an op-
portunity to bargain. The General Counsel cites no case
in which the Board has found that a court filing had an
“illegal objective” solely because the filing itself
amounted to a unilateral change. Compare Regional Con-
struction Corp., 333 NLRB at 320 (referring to “an[] un-
derlying act by the Respondent which would be a viola-
tion of some federal law”) (emphasis added). Here, there
is no “underlying act,” only the Motion to Compel itself.15
Our dissenting colleague contends that because the fil-
ing of the motion to compel arbitration “sought to imple-
ment . . . a unilateral change,” “[i]ts motion . . . had an
illegal objective.” She rejects our rationale that there was
no underlying act here, only the motion to compel itself,
as “more akin to a semantic quibble than a legally signifi-
cant distinction.” And she says that even if an underlying
act is required, that requirement was satisfied because the
filing of the motion was preceded by a decision “to apply
the DRP to a bargaining-unit employee.” But the DRP
was applied to Brown by the act of filing the motion to
compel, so what our colleague is really saying is that the
“underlying act” requirement was met because the filing
of the motion was preceded by a decision to file the mo-
tion.
Our colleague is mistaken. The “underlying act” re-
quirement is indeed legally significant. In fact, it is indis-
pensable. Without it, the “illegal objective” exception
would swallow the Bill Johnson’s rule. Here’s why.
Set aside the fact—an inconvenient one for the dis-
sent—that the Respondent’s primary objective in filing its
motion was to compel arbitration of Brown’s claims under
the collective-bargaining agreement’s grievance-arbitra-
tion procedure, not under the DRP. For present purposes,
enforce allegedly unlawful arbitration agreement), enf. denied in part 808
F.3d 1013 (5th Cir. 2015), affd. sub nom. Epic Systems Corp. v. Lewis,
584 U.S. ___, 138 S.Ct. 1612 (May 21, 2018) (holding that arbitration
agreements between employers and employees are enforceable in court
notwithstanding NLRA).
15 We recognize that the fact that the legal filing is alleged to be a
change in terms and conditions of employment in violation of Sec.
8(a)(5), rather than restraint, interference, or coercion under Sec. 8(a)(1),
makes this case somewhat unusual. Nonetheless, the 8(a)(5) allegation
that the Respondent’s filing of the Motion to Compel is an unfair labor
practice implicates the Respondent’s First Amendment right to petition
in the same way that an 8(a)(1) allegation would, so it is proper to apply
the same Bill Johnson’s analysis. And, in any event, our precedents offer
no other relevant analytical framework.
ANHEUSER-BUSCH, LLC 5
we will treat the motion as a naked attempt to apply the
DRP to Brown, without giving the Union prior notice and
opportunity to bargain. The “preemption” exception does
not apply here, and as we explain below, the motion to
compel was not baseless and retaliatory. Thus, to consti-
tute an unfair labor practice, the filing of the motion must
fall within the scope of the “illegal objective” exception.
Our position is that the filing of the motion did not have
an illegal objective within the meaning of the Supreme
Court’s Petition Clause jurisprudence because the DRP is
lawful, and therefore the Respondent, by filing its motion,
did not ask the court “to countenance an[] underlying act
by the Respondent which would be a violation of some
federal law.” Regional Construction Corp., 333 NLRB at
320. Our colleague dismisses the “underlying act” re-
quirement as a mere “semantic quibble.” But it cannot be
the case that the “illegal objective” exception applies with-
out an underlying unlawful act. Otherwise, the “illegal
objective” exception would apply whenever the litigation
act itself—e.g., the filing of a lawsuit or, as here, of a de-
fense motion—could be condemned as an unfair labor
practice, absent the protection afforded by the Petition
Clause. And if that were the case, it would not matter that
the lawsuit or motion was reasonably based, and it would
not matter that the lawsuit or motion was not impermissi-
bly motivated. It could still be condemned as an unfair
labor practice under the “illegal objective” exception,
which, on this view, would swallow the rule of Bill John-
son’s and turn the Petition Clause of the First Amendment
into an empty promise. That is the position the dissent
embraces.16 Moreover, since a litigation act is always pre-
ceded by a decision to take the act, that decision—contrary
to our colleague—cannot constitute the necessary under-
lying act.
2. Baseless and retaliatory
Absent an exception under footnote 5, this case must be
considered under the Supreme Court’s primary analysis in
Bill Johnson’s, which establishes that the Board can find
the Motion to Compel unlawful only if it is both baseless
and retaliatory. As noted, no party has argued that it is
either, let alone both. In the interest of completeness and
clarity, however, we continue the analysis by addressing
these issues, and we find, for the reasons explained below,
that the Motion to Compel is neither baseless nor retalia-
tory.

16 Our colleague takes refuge in Elevator Constructors (Long Eleva-
tor), 289 NLRB at 1095, a case she cites repeatedly. Again, in that case,
the “illegal objective” exception was found to have been met where the
union advocated for an interpretation of a contract provision that would
have made the provision unlawful under Sec. 8(e). Since the contract
provision was not unlawful on its face, Elevator Constructors is on the
outside edge of the Board’s “illegal objective” precedent. Still, the
First, in assessing whether the Motion to Compel was
baseless, we must respect the Supreme Court’s reasons for
establishing such a high standard. As the Court explained
in BE & K, the importance of the rights set forth in the
First Amendment calls for them to be protected by the cre-
ation of “breathing space” around them, i.e., the allowance
of even some otherwise unprotected speech or conduct to
ensure that the core rights are not trenched upon. BE & K,
536 U.S. at 530–532. On remand in BE & K, the Board
stated that in determining whether a lawsuit is reasonably
based, we look to whether a “reasonable litigant could
realistically expect success on the merits.” BE & K
Construction Co., 351 NLRB 29, 29 (2007) (quoting Pro-
fessional Real Estate Investors v. Columbia Pictures In-
dustries, 508 U.S. 49, 60 (1993)). As we later observed,
however, “[t]aken out of context, that standard may be
misunderstood to suggest that a lawsuit that entails some
tacking into the wind of adverse precedent cannot be rea-
sonably based.” Children’s Hospital Oakland, 351 NLRB
569, 571 (2007). To address any such misunderstanding,
we explained:
Such a view would be inconsistent with the constitu-
tional underpinning of the Supreme Court’s decision in
BE & K, in which it recognized a First Amendment in-
terest in lawsuits that “promote the evolution of the law
by supporting the development of legal theories that may
not gain acceptance the first time around.” BE & K, su-
pra at 532; see also Bill Johnson’s Restaurants, supra at
747 (holding that the Board should “stay its hand” unless
“the plaintiff’s position is plainly foreclosed as a matter
of law or is otherwise frivolous”).
Id. In the instant case, as in Children’s Hospital, we must be
“[m]indful of these principles” in assessing whether the Re-
spondent’s lawsuit was reasonably based.
As in BE & K, we are dealing here with litigation that,
even if it proves unsuccessful, was reasonably based. At
the time the Respondent filed its Motion to Compel,
Brown was a former employee whose discrimination law-
suit did not seek reinstatement, and he had, in his applica-
tion for employment, agreed to be bound by the DRP if he
was hired, “unless a written contract provide[d] to the con-
trary.” We need not decide whether or not the Respond-
ent’s argument that the DRP applied in the circumstances
here was legally correct, but we do not find it to be
contract provision was amenable to an interpretation that rendered it un-
lawful, and when the union adopted that interpretation, the contract be-
came the underlying unlawful act, and the Board found the “illegal ob-
jective” exception met. Here, in contrast, nobody, including our col-
league, contends that the DRP is amenable to an interpretation that would
render it unlawful.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
frivolous.17 Further, many aspects of the law regarding
the enforcement of arbitration agreements, especially in
the employment context, were then, and still are, unre-
solved.18 In sum, we conclude that the Respondent’s con-
tention that the DRP applied to Brown was neither
“plainly foreclosed as a matter of law” nor “otherwise friv-
olous.” Bill Johnson’s, 461 U.S. at 747.
Finally, we easily dispense with the issue of whether the
Respondent’s Motion to Compel was retaliatory. As
noted above, no party contends that the motion was moti-
vated by a desire to retaliate against Brown’s Section 7
activity of filing grievances, and there is nothing in the
record to suggest that it was so motivated. The Respond-
ent’s motivation appears to be nothing more than a prefer-
ence to arbitrate Brown’s discrimination case rather than
to litigate it in court. Plainly, such a motivation is in no
way retaliatory, let alone directed against Brown’s Section
7 activity.
Accordingly, we find that the Motion to Compel was
neither baseless nor retaliatory under Bill Johnson’s, su-
pra, and BE & K, supra.
CONCLUSION
Because the Respondent’s right to petition is protected
by the First Amendment, demonstrating that its Motion to
Compel is an unfair labor practice requires the General
Counsel to surmount the high bar set by the Supreme
Court in Bill Johnson’s Restaurant, supra, and BE & K
Construction Co., supra. We conclude that the Motion to
Compel did not have an illegal objective that would except
it from Bill Johnson’s primary analysis, and we find that
it was not baseless and retaliatory within the Bill John-
son’s analysis. Accordingly, we reverse the judge’s find-
ing that the Respondent’s attempt to apply its DRP policy
to Brown, by means of its Motion to Compel, constituted
a unilateral change in violation of Section 8(a)(5) and (1)
of the Act, and we dismiss the complaint.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. May 22, 2019
______________________________________
John F. Ring, Chairman

17 Similarly, we will not presume that the Respondent acted unreason-
ably in concluding that Brown, as a former employee whose discharge
was upheld by the MPGC, was no longer a statutory employee in the
bargaining unit when the Respondent filed its motion. And because there
is no evidence that the Respondent intended to apply the DRP to an em-
ployee that it knew to be a current, active employee and unit member,
we are not persuaded by the dissent’s speculation that “the Respondent
could take exactly the same approach with regard to an individual whose
status as an employee and unit member was undisputed.”
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
It is black-letter labor law that an employer may not im-
pose a new term and condition of employment on a bar-
gaining unit employee—particularly a term contrary to an
existing collective-bargaining agreement—without first
bargaining with the employee’s union. Today we are
asked to determine whether this otherwise clearly unlaw-
ful action can become lawful if the employer attempts to
achieve its ends by petitioning a federal court to impose
the new employment term. The answer—as a matter of
both Board precedent and common sense—should be a
clear and unequivocal “no.” An attempt to achieve
through litigation what one could not otherwise lawfully
do constitutes petitioning the court with an illegal objec-
tive under Bill Johnson’s Restaurants v. NLRB, 461 U.S.
731 (1983), and under well-established law the involve-
ment of the court in no way precludes the Board from find-
ing and remedying the unfair labor practice.
Here, the Respondent sought to impose its Dispute Res-
olution Policy (DRP) on a discharged bargaining unit em-
ployee, Matthew Brown, after he filed a racial-discrimina-
tion lawsuit challenging his termination. However, the ap-
plication of this policy was directly contrary to the appli-
cable collective-bargaining agreement that governed
Brown’s employment, and it unilaterally changed his
terms and conditions of employment in violation of the
National Labor Relations Act. The collective-bargaining
agreement provided for an entirely different grievance and
arbitration process—which, unlike the DRP, did not waive
employees’ right to sue over employment discrimination.
In filing its motion to compel arbitration, the Respond-
ent sought to implement—with the aid of the federal
court’s authority—a unilateral change that it could not
lawfully implement otherwise. Its motion thus had an il-
legal objective, as understood by the Supreme Court and
by the Board. That means, in turn, that the Board has the
18 See, e.g., New Prime Inc. v. Oliveira, 586 U.S. ___, 139 S.Ct. 532,
2019 WL 189342, Case No. 17-340 (Jan. 15, 2019) (holding that courts
could not enforce arbitration agreement against interstate-transportation
worker, even though he was not classified as employee); Epic Systems
Corp. v. Lewis, 584 U.S. ___, 138 S.Ct. 1612 (May 21, 2018) (holding,
contrary to Board decisions, that arbitration agreements between em-
ployers and employees are enforceable in court notwithstanding NLRA).
ANHEUSER-BUSCH, LLC 7
statutory authority—notwithstanding the Petition
Clause—to redress the Respondent’s violation of the Act.
As I will explain, the majority’s analysis of the “illegal
objective” issue here is simply mistaken. Unlike the ma-
jority, I would adopt the judge’s finding that the Respond-
ent violated Section 8(a)(5) of the Act, and I would order
appropriate remedies for that violation.1
I.
An employer’s unilateral change to bargaining unit em-
ployees’ terms and conditions of employment violates
Section 8(a)(5) and (1) of the Act. NLRB v. Katz, 369 U.S.
736, 743–744 (1962). Under Section 8(d) of the Act, an
employer must bargain in good faith with the union repre-
senting its employees with respect to wages, hours, and
other terms and conditions of employment. NLRB v.
Borg-Warner Corp., 356 U.S. 342, 349 (1958). The im-
plementation of a dispute-resolution process that requires
employees to arbitrate all work-related claims and to
waive their right to sue their employer is a mandatory sub-
ject of bargaining. See Utility Vault Co., 345 NLRB 79,
79 fn. 2 (2005); see also Litton Business Systems, Inc. v.
NLRB, 501 U.S. 190, 199 (1991).
In order for the Board to enjoin a party’s lawsuit as an
unfair labor practice, the litigation must be both baseless
and retaliatory as described in Bill Johnson’s Restaurants,
supra, and BE & K Construction Co. v. NLRB, 536 U.S.
516 (2002), or it must fall within one of the limited excep-
tions recognized in Bill Johnson’s. The relevant exception
here applies to litigation that has “an objective that is ille-
gal under federal law.” Bill Johnson’s, 461 U.S. at 737 fn.
5. In articulating that exception, the Supreme Court ex-
plained that it had upheld Board orders enjoining unions
from prosecuting lawsuits for enforcement of fines that
could not be lawfully imposed under the Act.2 That is, the
Court permits the Board to enjoin lawsuits that seek to en-
force an unlawful act. Similarly, the Board has found,
with court approval, that it may enjoin litigation when a
union seeks to enforce a contract provision that is itself

1 Pursuant to the requests of the General Counsel and the Charging
Party, and consistent with Board practice, I would amend the judge’s
recommended Order to require the Respondent to: (1) notify the district
court that it is rescinding its unlawful unilateral change of applying the
DRP to bargaining unit members and that it no longer opposes Brown’s
lawsuit on the basis of the DRP; and (2) reimburse Brown for all reason-
able expenses and legal fees, with interest, incurred in opposing the Re-
spondent’s unlawful motion in United States District Court to compel
individual arbitration of his Title VII lawsuit. See Bill Johnson’s Res-
taurants, 461 U.S. at 747 (“If a violation is found, the Board may order
the employer to reimburse the employees whom he had wrongfully sued
for their attorneys’ fees and other expenses” as well as “any other proper
relief that would effectuate the policies of the Act.”); Teamsters Local
776 (Rite Aid), 305 NLRB 832, 835 fn. 10 (1991) (“[I]n make-whole
orders for suits maintained in violation of the Act, it is appropriate and
unlawful under the Act or would be unlawful as enforced.
See Elevator Constructors (Long Elevator), 289 NLRB
1095, 1095 (1988), enfd. 902 F.2d 1297 (8th Cir. 1990).3
II.
It is clear that the Respondent unilaterally applied the
DRP to Brown. The conclusion that it violated Section
8(a)(5) and (1) by doing so should be equally straightfor-
ward. The Respondent is an employer under the Act and
subject to Section 8(d)’s bargaining obligations. The DRP
is a mandatory subject of bargaining, which could not be
applied unilaterally to a unit employee. By the DRP’s ex-
press terms, moreover, it applied only to the Respondent’s
“salaried and non-union hourly employees.” Throughout
Brown’s employment with the Respondent, Brown
worked in nonsalaried, hourly positions that were covered
by the collective-bargaining agreement—and excluded
from the DRP’s coverage. Plainly, nothing in the course
of Brown’s employment subjected him to the DRP. Cer-
tainly, the Respondent never bargained with the Union
over applying the DRP to unit employees, nor did the Un-
ion somehow consent or waive its statutory right to bar-
gain.
Nor (as the Supreme Court had made clear) would it
have been permissible under the Act for an individual
agreement between the Respondent and a unit employee
like Brown to waive benefits or protections afforded by
the collective-bargaining agreement, unless the Union and
the Respondent had negotiated such a waiver. J.I. Case
Co. v. NLRB, 321 U.S. 332, 338 (1944). Thus, Brown’s
employment application, cited by the Respondent, has no
bearing here at all. Although the application form con-
tained a small-print notice that the applicant would be sub-
ject to the DRP if he or she “bec[a]me employed by the
company, and unless a written contract provide[d] to the
contrary,” it does not subject Brown to the DRP’s re-
strictions any more that the DRP’s own terms do. This is
because, throughout his employment—including when he
was discharged—Brown was covered by the collective-
necessary to award interest on litigation expenses.”), enfd. 973 F.2d 230
(3d Cir. 1992), cert. denied 507 U.S. 959 (1993).
2 See Granite State Joint Board, TWUA (International Paper Box
Machine Co.), 187 NLRB 636 (1970), enf. denied, 446 F.2d 369 (1st Cir.
1971), revd. 409 U.S. 213 (1972); Booster Lodge No. 405, IAM (The
Boeing Co.), 185 NLRB 380 (1970), affd. in relevant part 459 F.2d 1143
(D.C. Cir. 1972), affd. 412 U.S. 84 (1973).
3 In Long Elevator, the union filed a grievance on behalf of an em-
ployee, relying on a clause in the collective-bargaining agreement that
the General Counsel did not contend was facially unlawful. The union
sought a construction of that clause, however, that, if successful, would
have resulted in a de facto hot-cargo clause. The Board concluded that,
because the “contract clause as construed by the [r]espondent would vi-
olate Section 8(e),” the union sought an illegal objective in violation of
Sec. 8(b)(4)(ii)(A) by attempting to enforce the unlawful construction of
the clause through the grievance procedure. 289 NLRB at 1095.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining agreement, which did “provide[] to the con-
trary.” The collective-bargaining agreement provided a
materially different, bargained-for dispute-resolution pro-
cess, and one that, in sharp contrast to the DRP, did not
clearly and unmistakably waive unit employees’ rights to
have a court hear discrimination claims. Thus, neither the
DRP’s own terms nor the employment application made
the DRP applicable to Brown.
The Respondent does not deny that it failed to provide
the Union with notice or an opportunity to bargain before
seeking to apply the DRP to Brown and that it had never
before attempted to apply the DRP to a bargaining unit
employee.4 Rather, the Respondent argues that, although
it acted unilaterally, its conduct did not violate the Act be-
cause, at the time the Respondent sought to apply the DRP
to him, Brown was a former employee and therefore no
longer a member of the bargaining unit. Under well-
established principles, the administrative law judge
properly rejected that argument. Discharged or not,
Brown is clearly a statutory employee,5 and he remained a
unit employee for purposes of determining the applicabil-
ity of the DRP.6
In short, because the Union is the representative of bar-
gaining unit employees—including Brown—the Re-
spondent could not lawfully have applied the DRP to those
employees without first bargaining in good faith with the

4 The majority emphasizes that the Respondent’s motion to compel
arbitration nominally seeks application of the DRP only as the Respond-
ent’s “alternative” request (while primarily seeking application of the
collective-bargaining agreement’s arbitration provision). But the Re-
spondent does not dispute that, by means of its motion, it applied the
DRP to Brown. Its illegal objective—unilaterally subjecting bargaining
unit employees to the DRP—need not be the Respondent’s sole objective
in order to find the filing unlawful. The Supreme Court’s decision in Bill
Johnson’s refers to “a suit that has an objective that is illegal under fed-
eral law,” id., 461 U.S. at 737 fn. 5 (emphasis added), not a suit whose
sole objective is illegal. Cf. Precrete, Inc. (Lathers Local 46), 140 NLRB
1, 7 (1962) (in case of picketing alleged to have illegal objective, where
evidence arguably demonstrated multiple objectives, “the illegal objec-
tive would still have been proved because the violation alleged in the
complaint requires only that ‘an object’ of the picketing, not the sole ob-
ject, be that proscribed” by the Act) (citing NLRB v. Denver Building &
Construction Trades Council, 341 U.S. 675, 689 (1951).
And, of course, the Respondent knew (as the majority does) that the
parties had already pursued the arbitration process set forth in the collec-
tive-bargaining agreement. As explained, that agreement does not actu-
ally preclude Brown from seeking recourse in the courts. The Respond-
ent’s request to apply the collective-bargaining agreement, therefore,
would lead either to a dead end or back to the collective-bargaining
agreement’s implicit option of a subsequent lawsuit. Either way, the
court would presumably address the Respondent’s “alternative” argu-
ment that the DRP applies to Brown.
5 The Board has long held that the term “employee” in Sec. 2(3) of
the Act “shall not be limited to the employees of a particular employer”
and includes “former employees of a particular employer.” 29 U.S.C. §
152(3); Waco, Inc., 273 NLRB 746, 747 fn. 8 (1984); Little Rock Crate
& Basket Co., 227 NLRB 1406, 1406 (1977); Briggs Manufacturing Co.,
Union. Unilaterally imposing the DRP on bargaining unit
members, as the Respondent undisputedly did, is a clear
violation of Section 8(a)(5) and (1) of the Act.7
It follows directly from this conclusion that the Re-
spondent’s motion to compel arbitration had an illegal
objective under Bill Johnson’s. The objective of the Re-
spondent’s motion was to apply the DRP to a bargaining
unit member—which, under the circumstances, it could
not do without violating the National Labor Relations Act.
Just as the Supreme Court has observed that the Board
may enjoin union lawsuits that are simply the mechanism
to enforce and collect allegedly unlawful fines from em-
ployees, so the Board may enjoin an employer’s legal ac-
tion that seeks to impose an unlawful unilateral change in
employment terms and conditions on union-represented
employees. The Respondent’s motion to compel arbitra-
tion was simply the mechanism to enforce its unlawful ap-
plication of the DRP to unit employees. Similarly analo-
gous is the Board’s Long Elevator decision holding that a
lawsuit or grievance seeking to enforce an unlawful con-
tract provision has an illegal objective. Here, the Re-
spondent’s motion seeks to enforce the DRP in a way that
unlawfully circumvents the collective-bargaining process.
It is clear, therefore, that the Respondent violated Section
8(a)(5) and (1) of the Act and that the Petition Clause is
not an obstacle to a Board remedy for the violation.8
75 NLRB 569, 570 (1947). The Respondent relies on Allied Chemical
& Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate
Glass Co., 404 U.S. 157 (1971), for the proposition that individuals who
have been separated from employment are not a part of a bargaining unit,
but that case involved the retirement benefits of current retirees, who
have no expectation of returning to work, rather than the rights of dis-
charged employees, like Brown, to challenge their discharges.
6 As described, Brown was a bargaining unit member for the entire
period that he actively worked for the Respondent. He challenged his
termination through contractual grievance-arbitration proceedings,
which were available to him because of his bargaining unit membership.
Brown’s federal lawsuit is an alternative avenue, permissible under rele-
vant statutes and his collective-bargaining agreement, for him to chal-
lenge his termination. To hold that Brown is no longer a unit employee
would effectively mean deciding that his termination was lawful and ef-
fective, but that is the very subject of his lawsuit.
Analogously, the Board treats individuals who, like Brown, have chal-
lenged the lawfulness of their discharges as potential eligible voters who
are permitted to cast challenged ballots in representation case proceed-
ings. See, e.g., Advance Industrial Security, Inc., 217 NLRB 17, 17–18
(1975) (discharged employees awaiting U.S. Department of Labor dis-
position of Age Discrimination in Employment Act claim). Further,
even the Respondent concedes that Brown is eligible for reinstatement
under Title VII.
7 Cf. WGE Federal Credit Union, 346 NLRB 982, 982 and fn. 2
(2006) (employer may not enforce rule unilaterally implemented in vio-
lation of Sec. 8(a)(5) duty to bargain).
8 The Respondent contends that the illegal-objective exception “must
be narrowly interpreted to only include litigation intended to circumvent
Board orders.” But the Respondent is simply incorrect. True, the Board
has found an illegal objective where it “has previously ruled on a given
ANHEUSER-BUSCH, LLC 9
III.
My colleagues’ arguments that the Petition Clause pre-
vents the Board from redressing an obvious violation of
Section 8(a)(5) simply because the violation takes the
form of a judicial pleading are not persuasive.9
The majority cites Regional Construction Corp., 333
NLRB 313 (2001), for the proposition that, in order to
have an illegal objective, the Respondent’s motion “has to
have involved a matter . . . which if granted would commit
the court to countenance an[] underlying act by the Re-
spondent which would be a violation of some federal law.”
Id. at 320 (administrative law judge’s decision). My col-
leagues assert that “[h]ere, there is no ‘underlying act,’
only the Motion to Compel itself.” But they misconstrue
the key point of the quoted text, and they wrongly con-
clude that it does not apply here.
First, the majority errs in placing so much weight on the
word “underlying.” The judge’s statement summarized
common fact patterns of prior cases, but nothing in Re-
gional Construction suggests that a court filing that is
itself the “act . . . in violation of some federal law” cannot
be found to have an illegal objective. Board precedent re-
futes any such suggestion. Thus, a grievance seeking an
unlawful interpretation of a contract provision was held to
have an illegal objective, without any “underlying act” in
violation of law. Elevator Constructors (Long Elevator),
289 NLRB at 1095. The majority’s position is more akin
to a semantic quibble than a legally significant distinc-
tion.10
In any event, the Respondent’s motion to compel arbi-
tration obviously would not have been filed in the absence
of the Respondent’s underlying decision to apply the DRP

matter, and where the lawsuit is aimed at achieving a result that is in-
compatible with the Board’s ruling.” Teamsters Local 776 (Rite Aid),
305 NLRB at 835; see also Part-Time Faculty Assn. at Columbia Col-
lege, 367 NLRB No. 119, slip op. at 1 fn. 1 (April 24, 2019). But, as
shown, that is not the only fact pattern to which the illegal-objective ex-
ception applies.
9 Because I find that the Respondent’s motion to compel arbitration
fits within the illegal-objective exception of Bill Johnson’s, I need not
address whether the motion could also be enjoined as baseless and retal-
iatory (a view the majority rejects). Even so, I am dubious of the major-
ity’s finding that the Respondent’s motion is neither “plainly foreclosed
as a matter of law” nor “otherwise frivolous,” and therefore is not base-
less. The Respondent has argued that the DRP covers an individual—a
bargaining unit member—whom the DRP’s express terms exclude from
coverage. That fact belies the Respondent’s assertion that its legitimate
purpose in filing the motion was “to enforce Respondent’s [non-existent]
contractual agreement with Charging Party [Brown].”
10 Seeking to rationalize the supposed “underlying act” requirement,
the majority insists that a separate underlying act is essential to ensure
that the illegal-objective exception does not “swallow the rule of Bill
Johnson’s and turn the Petition Clause of the First Amendment into an
empty promise,” predicting that “[o]therwise, the ‘illegal objective’ ex-
ception would apply whenever the litigation act itself . . . could be con-
demned as an unfair labor practice.” But the majority takes aim at a straw
to a bargaining unit employee—unlawfully.11 The fact
that the motion was not preceded by some other unlawful
act—e.g., announcing to the Union and current employees
that the DRP would be applied to bargaining unit employ-
ees—does not somehow change the nature of what the fed-
eral court was being asked to do. Thus, even under the
majority’s narrow reading of Regional Construction, the
Board’s finding of an illegal objective there supports find-
ing the same here: by granting the motion to compel arbi-
tration, the court would give effect to the Respondent’s
unilateral application of the DRP to a bargaining unit
employee—and that would “commit the court to counte-
nance” a violation of the Act.
The majority further asserts that the DRP was lawful
and contends that “the enforcement of a policy or contrac-
tual provision is not an illegal objective if the policy or
provision is not itself illegal.” But even if the DRP was
facially lawful, it was clearly not lawful as applied to
Brown or other union-represented employees. Board law
is clear that advocating for a result that would violate the
law does, in fact, constitute an illegal objective. See Ele-
vator Constructors (Long Elevator), supra (finding illegal
objective in grievance that sought unlawful contract inter-
pretation).
The logical, but manifestly unreasonable, consequences
of the majority’s analysis highlight its flaws. If the Peti-
tion Clause precludes finding an unfair labor practice ir-
respective of Brown’s employment and bargaining unit
status, then the Respondent could take exactly the same
approach with regard to an individual whose status as an
employee and unit member was undisputed. In other
words, any employer that has both represented and
man. Here, the Respondent seeks to achieve an unlawful outcome (i.e.,
a unilateral change in employment terms) by means of its motion to com-
pel. It is not alleged here that the motion itself is coercive, as in the more
common 8(a)(1) case. This case, therefore, would not lead to the dire
results the majority foresees any more than Long Elevator does.
The majority’s attempt to distinguish Long Elevator is likewise un-
persuasive. The majority argues that, there, when the union adopted an
interpretation that rendered the contract unlawful, “the contract became
the underlying unlawful act.” Putting aside the oddity of this claim (the
contract was not an “act” in any ordinary sense), the majority’s argument
disregards the obvious: the act at issue in Long Elevator was the union’s
adoption of a contract interpretation that would have produced an unlaw-
ful outcome. So, too, here, the Respondent adopted an interpretation of
the DRP (i.e., that it applies to unit employees) that would have an un-
lawful outcome (i.e., a unilateral change in employees’ terms of employ-
ment).
11 The majority mischaracterizes my point here. I am not arguing that
the Respondent’s decision to file the motion to compel arbitration was
the underlying act, even assuming that one is necessary, that it sought to
enforce by filing the motion. Rather, it was the Respondent’s decision
to unilaterally, and therefore unlawfully, apply the DRP to bargaining
unit employees that was the underlying act that the Respondent sought
to enforce by filing the motion.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unrepresented employees, and that maintains an arbitra-
tion policy applicable only to the latter group, would be
free to impose the arbitration policy even on a current, ac-
tive
union-represented employee without providing notice to
the union or an opportunity to bargain, and without any
past practice of subjecting represented employees to the
arbitration requirement, as long as the employer does so
by means of a court filing.12 It cannot be correct that the
statutory duty to bargain and a collective-bargaining
agreement could be circumvented so easily.
IV.
The Respondent’s unilateral application of the DRP to
represented employees violated Section 8(a)(5) and (1) of
the Act, and because the motion to compel arbitration nec-
essarily has an illegal objective, the Board can and should
enjoin it, consistent with the Act’s fundamental policy of
creating stability in labor relations through collective bar-
gaining. Contrary to the majority, the Petition Clause is
no obstacle here.13
The majority’s failure to reach the correct result here,
however, does not prevent the court hearing Brown’s dis-
crimination lawsuit from doing so. In Kaiser Steel Corp.
v. Mullins, 455 U.S. 72 (1982), the Supreme Court held
that, despite the Board’s primary jurisdiction to determine
what is or is not an unfair labor practice, it is well estab-
lished that:
a federal court has a duty to determine whether a contract
violates federal law before enforcing it. “The power of
the federal courts to enforce the terms of private agree-
ments is at all times exercised subject to the restrictions
and limitations of the public policy of the United States
as manifested in . . . federal statutes. . . . Where the en-
forcement of private agreements would be violative of
that policy, it is the obligation of courts to refrain from
such exertions of judicial power.”
Id. at 83–84 (quoting Hurd v. Hodge, 334 U.S. 24, 34–35
(1948)) (footnotes omitted in original).14 The court thus owes
no deference to the Board’s misinterpretation of Bill John-
son’s or its misunderstanding of the Petition Clause. Nothing

12 Active employees, like discharged employees, have the right to sue
their employers for discrimination or harassment, absent a waiver of the
right. Brown’s lawsuit challenged both his suspension and his discharge
as racially discriminatory; he filed EEOC charges after each action and
obtained a right-to-sue notice regarding each charge. Even if Brown had
not ultimately been discharged, he might still have filed a lawsuit regard-
ing his suspension.
13 The majority’s high regard for the Petition Clause is paradoxical
here, given that today’s holding threatens to nullify a discharged em-
ployee’s own right to petition the government for redress of his griev-
ances against the employer.
the Board does today, therefore, prevents the court from con-
cluding that the DRP cannot lawfully be applied to Brown.
Dated, Washington, D.C. May 22, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
Marinelly Maldonado, Esq., for the Government.1
Thomas Royall Smith, Esq., for the Company.2
Joseph Egan, Jr., Esq., for the Union.
Jeffery H. Klink, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM NELSON CATES, Administrative Law Judge. This
case involves a single allegation that the Company, on or about
June 4, 2012, unilaterally and without notice to the Union and
without affording the Union an opportunity to bargain about a
particular change, an alleged mandatory subject for bargaining,
the Company violated Section 8(a)(5) and (1) of the National La-
bor Relations Act (the Act). I heard this case in trial in Jackson-
ville, Florida, on July 11, 2013. The case originates from a
charge filed on December 3, 2012, by Matthew C. Brown, an
individual. The prosecution of the case was formalized on March
29, 2013, when the Regional Director for Region 12 of the Na-
tional Labor Relations Board (the Board), acting in the name of
the Board’s Acting General Counsel, issued a complaint and no-
tice of hearing (the complaint), against Anheuser-Busch LLC.
(the Company). The Company, in its answer to the complaint,
and at trial, denies having violated the Act in any manner alleged
in the complaint.
The parties were given full opportunity to participate, to intro-
duce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. I carefully observed the demeanor of
the witnesses as they testified, and I rely on those observations
here. I have studied the whole record, and based on the detailed
findings and analysis below, I conclude and find the Company
violated the Act essentially as alleged in the complaint.
FINDINGS OF FACT
I. JURISDICTION, SUPERVISORY/AGENCY STATUS, AND
14 See also Communications Workers of America v. Beck, 487 U.S.
735, 743 (1988) (stating that “federal courts may decide labor law ques-
tions that emerge as collateral issues in suits brought under independent
federal remedies”); Connell Construction Co. v. Plumbers and Steamfit-
ters Local 100, 421 U.S. 616, 626 (1975) (same) (citing cases).
1 I shall refer to counsel for the Acting General Counsel as counsel
for the Government and the Acting General Counsel as the Government.
2 I shall refer to counsel for the Respondent as counsel for the Com-
pany and shall refer to the Respondent as the Company.
ANHEUSER-BUSCH, LLC 11
LABOR ORGANIZATION
The Company is a Missouri limited liability corporation, with
an office and place of business in Jacksonville, Florida, where it
has been, and continues to be, engaged in the manufacture, sale,
and distribution of beer and related products. During the past
year, a representative period, the Company sold and shipped
from its Jacksonville, Florida facility goods and materials valued
in excess of $50,000 directly to customers located outside the
State of Florida. The parties stipulated, and I find, the Company
is an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The parties stipulated, and I find, that since January 1, 2010,
Senior People Director Susan Brueggemann has been an agent
of the Company within the meaning of Section 2(13) of the Act.
It is admitted, that at all times material here, Jacksonville Brew-
ery People Manager Timothy Saggau has been a supervisor and
agent of the Company within the meaning of Section 2(11) and
(13) of the Act.
The parties stipulated, and I find, International Brotherhood of
Teamsters Local 947 and International Brotherhood of Team-
sters, Brewery and Soft Drink Workers Conference (jointly the
Union), both are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Brief Background
The issue here centers around the employment history of
Brown at the Company, including his preemployment docu-
ments, his work and disciplinary history, and, his postemploy-
ment actions, including filings with the Equal Employment Op-
portunity Commission (EEOC) and in the United States District
Court, Middle District of Florida, Jacksonville Division (District
Court). It is necessary to set forth Brown’s employment history
even though the validity of his suspension and termination is not
before me, nor, is the correctness of his posttermination actions.
The issue before me only relates to the alleged unilateral action
by the Company and whether it gave notice and an opportunity
to bargain to the Union.
It is admitted the following employees of the Company (the
unit), constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All maintenance and production and utilities employees of the
Company, including hourly rated employees at its Jacksonville,
Florida brewery, excluding clerical employees, professional
employees, guards, watchmen and supervisors as defined in the
National Labor Relations Act.
Since, on or before, March 28, 1998, the Company recognized
the Union as the exclusive collective-bargaining representative
of the unit. This recognition has been embodied in successive
collective-bargaining agreements, the most recent of which, is
effective by its terms from November 7, 2008, to February 28,
2014. At all times since, on or before, March 28, 1998, based on
Section 9(a) of the Act, the Union has been the exclusive collec-
tive-bargaining representative of the unit.

3 The facts set forth are, for the most part, admitted or stipulated. I
do not indicate such at each series of facts. It will be apparent on the one
B. Facts3
Since on or about April 1, 2004, until the present, the Com-
pany has maintained the Anheuser-Busch Dispute Resolution
Program policy (DRP), at its Jacksonville, Florida facility, which
states in relevant part:
SPECIAL NOTICE TO EMPLOYEES
THIS POLICY CONSTITUTES A BINDING
AGREEMENT BETWEEN YOU AND THE COMPANY
FOR THE RESOLUTION OF EMPLOYMENT DISPUTES
By continuing your employment with Anheuser-Busch
Companies, Inc. or any of its subsidiary companies (“Com-
pany”), you are agreeing as a condition of your employment
to submit all covered claims to the Anheuser-Busch Dispute
Resolution Program (“DRP”), to waive all rights to a trial
before a jury on such claims, and to accept an arbitrator’s
decision as the final, binding, and exclusive determination
of all covered claims.
This program does not change the employment at-will relation-
ship between you and the Company:
GENERAL RULES
COVERED EMPLOYEES
The DRP applies to all salaried and non-union hourly
employees of Anheuser-Busch Companies, Inc. or any
of its U.S. subsidiaries. . . .
The practice, since April 1, 2004, has been that applicants for
positions at the Company, both for nonbargaining and bargain-
ing unit positions, agree to the same DRP application language
set forth above.
Brown applied for employment with the Company as a week-
end worker (Weekender), on June 16, 2004. The DRP language
was in the employment forms completed by Brown and pre-
sented to the Company. Brown, however, did not receive a copy
of the DRP at any time before or during his employment with the
Company.
Brown was offered employment at the Company on Septem-
ber 20, 2004, as a Weekender, and, began working that position
on September 25, 2004. Brown worked continuously as a Week-
ender from September 25, 2004, until May 20, 2005, when he
became an apprentice I. Brown worked continuously, as an ap-
prentice I, from May 20, 2005, until his termination on March
11, 2010. Brown’s positions, as Weekender and apprentice I, are
included in the bargaining unit described elsewhere here, and as
such, Brown was in the bargaining unit during his entire employ-
ment at the Company.
The parties collective-bargaining agreement contains, at arti-
cle 8, a three-step grievance procedure culminating in final and
binding arbitration before a multiplant grievance committee (the
MPGC) consisting of two members each from the Company and
occasion where it is necessary for me to make credibility resolutions, that
the facts are contested, and, I resolve them.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union and a neutral member chosen by the MPGC from a list
of neutrals provided by the American Arbitration Association.
On September 23, 2009, the Company suspended Brown for
4 weeks. On September 25, 2009, the Union filed a grievance
claiming Brown’s suspension was not for good cause. The griev-
ance advanced through the various steps of the grievance process
including the MPGC which, on December 9, 2009, denied
Brown’s suspension grievance. On December 7, 2009, Brown
filed a charge with the Florida Commission of Human Relations
alleging he was unlawfully suspended based on race.
As noted elsewhere here, the Company discharged Brown on
March 11, 2010. On March 22, 2010, the Union filed a grievance
claiming Brown’s discharge was not for good cause. This griev-
ance advanced to the MPGC level where, on May 3, 2010, the
MPGC upheld Brown’s discharge.
On March 30, 2010, Brown filed a charge with the Florida
Commission of Human Relations alleging he was unlawfully
discharged based on retaliation for filing the charge regarding his
suspension with the Florida Commission of Human Relations on
December 7, 2009.
On April 3, 2012, Brown filed a complaint against the Com-
pany in District Court alleging race discrimination and retalia-
tion in violation of Title VII of the Civil Rights Act of 1964. On
June 4, 2012, the Company, in response to Brown’s complaint,
filed a motion with the District Court to Dismiss or Stay and
Compel Arbitration pursuant to the DRP in Brown’s pre-em-
ployment application.
As of June 4, 2012, when the Company filed its motion with
the District Court, Brown was a regular employee of Bacardi
Rum.
Brown testified that after he received a Right to Sue letter
from the EEOC he consulted an attorney who informed him of
the Company’s DRP program about which he became con-
cerned. Brown testified he telephoned the Company’s St Louis
corporate headquarters, and after explaining to the receptionists
he was a collective-bargaining employee and needed to speak
with someone about the DRP program, his call was transferred
to Senior People Director Brueggemann. Brown told
Brueggemann he was a collective-bargaining employee who had
just gone through the MPGC process, and lost, and wanted to
know if the Company’s DRP program applied to him. Brown
testified Brueggemann replied: “[S]ince I had been through the
grievance process, that the DRP did not apply to me because I
was a collective bargaining employee.”
Brown testified that a week after he filed his District Court
lawsuit against the Company he again contacted Brueggemann.
Brown again asked if the Company’s DRP program applied to
him and was again told it did not because he was a collective-
bargaining unit employee.
Brueggemann testified she could not recall speaking with
Brown and stated she believed if she had been called twice by
Brown she would remember it. Brueggemann stated a

4 Brown impressed me he was testifying truthfully and without reser-
vation. Brueggemann, on the other hand, impressed me as not being ab-
solutely certain of her testimony. I credit Brown.
5 Thirty-year employee and former union steward, trustee, and Vice
President James Miller testified he was unaware of the Company’s DRP
collective-bargaining employee would not be covered by the
DRP program but a former employee would be.4
Brown testified he was a member of the Union and served as
a steward but did not know of the Company’s DRP program5
until he started exploring a lawsuit against the Company.
Brown stopped paying union dues around May 2010. The Un-
ion was not involved with, nor did anything for Brown, at the
time he filed his District Court case, or when the Company filed
its Motion to Compel on June 4, 2012. Brown was not aware of
any labor dispute between the Company and the Union at the
time the Company filed its Motion to Compel.
At no time did the Company give written notice of its intent
to apply its DRP policy to bargaining unit employees. At no time
did the Company offer to bargain, or bargain, with the Union
regarding its DRP policy and/or the application of the DRP pol-
icy to bargaining unit employees.
C. The Allegations, Discussions, and Conclusions
It is alleged at paragraphs 8 and 9 of the complaint:
(a) On June 4, 2012, Respondent filed a Motion to Dismiss or
Stay and Compel Arbitration to the DRP, herein called Motion,
in response to Matthew C. Brown’s lawsuit described above. .
., notwithstanding that Brown was employed in the Unit and
the DRP states that it applies to “salaried and non-union hourly
employees,” thereby changing the terms and conditions of em-
ployment of the Unit.
(b) The subject described above in paragraph 8(a) relates to
wages, hours, and other terms and conditions of employment
of the Unit, and is a mandatory subject for the purposes of col-
lective bargaining.
(c) Respondent engaged in the conduct described above in par-
agraph 8(a) without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the Respond-
ent.
It is alleged the Company’s actions violate Section 8(a)(5) and
(1) of the Act.
1. The Government’s position
The Government notes the facts are mostly undisputed and as-
serts the case primarily presents the legal issue of whether the
Company violated Section 8(a)(5) and (1) of the Act by changing
terms and conditions of employment of its bargaining unit em-
ployees, specifically by attempting, in Brown’s District Court
case, to apply its DRP policy to a bargaining unit employee with-
out providing the Union notice and an opportunity to bargain.
The Government points out that, at all times material, the Union
represented, and continues to represent, hourly paid production
and maintenance employees, of which Brown was one. Govern-
ment counsel asserts the Company’s DRP policy, in effect since
2004, is applicable only to nonunion and salaried employees.
The Government notes the parties collective-bargaining
program. International Brotherhood of Teamsters Secretary/Treasurer
Larry Knouse testified he was unaware of the DRP program until July
2012 when he was contacted by Brown’s attorney.
ANHEUSER-BUSCH, LLC 13
agreement contains a grievance and arbitration procedure appli-
cable to unit employees, including Brown, and further notes
Brown utilized that grievance procedure both with respect to his
suspension and discharge. The Government states the lawful-
ness of Brown’s suspension and discharge are irrelevant to the
issues here, but rather, contends that when, on June 4, 2012, the
Company filed its Motion to Dismiss or Stay Brown’s Title VII
lawsuit and compel arbitration pursuant to the Company’s DRP
policy, the Company changed the terms and conditions of em-
ployment for unit employees, including Brown, without notice
to or bargaining with the Union and as such violated Section
8(a)(5) and(1) of the Act. As part of any relief provided the Gov-
ernment simply seeks to have the Company withdraw that por-
tion of its defense to Brown’s District Court lawsuit that requests
the District Court direct the matter be decided pursuant to the
Company’s DRP policy.
2. The Company’s position
The Company asserts that when Brown filed his District Court
case in April 2012, he had not been an employee of the Company
for approximately 2 years. The Company, more specifically ar-
gues, that when it filed its Motion to Dismiss or Compel arbitra-
tion in Brown’s District Court lawsuit, its actions did not violate
the Act because Brown was not, at that time, an employee of the
Company. The Company does contend however, Brown is sub-
ject to its DRP policy because before Brown was an employee of
the Company, he admittedly, signed an application for employ-
ment form agreeing to be subject to the Company’s DRP policy
for dispute resolutions between he and the Company.
The Company contends Brown does not, under the circum-
stance here, meet the definition of an employee within the mean-
ing of Section 2(3) of the Act. The Company notes Brown’s
suspension and discharge were both processed through the par-
ties collective-bargaining grievance procedure, where his sus-
pension and discharge were upheld. The Company also notes
there was no labor dispute between it and the Union and that
Brown never claimed he was fired in violation of the Act. The
Company contends its DRP policy was established for situations
just like Brown’s, where at the time of the its actions regarding
Brown’s lawsuit, he was not an employee of the Company, nor,
a member of the bargaining unit. The Company contends where
an employee is discharged for just cause and does not involve a
labor dispute, or an unfair labor practice, as the Company asserts
was the case with Brown, the individual is no longer an em-
ployee within the meaning of the Act. The Company notes this
case is not about the merits of its DRP policy, nor, is it a case
about Brown being denied access to the Federal courts, but, ra-
ther whether the Company’s actions related to Brown’s District
Court lawsuit violates the Act. Summarized and stated differ-
ently, the Company articulates the “sole issue” here as whether
it violated Section 8(a)(1) and (5) of the Act by moving in Fed-
eral court to compel Brown to arbitrate his Federal litigation 2
years after his termination was upheld and at a time when he has
no right or prospect of returning to the bargaining unit. Again,
further summarized, the Company asserts it did not violate Sec-
tion 8(a)(5) of the Act because at the time Brown agreed to the
Company’s DRP policy and when the Company filed its motion
to compel arbitration, Brown was not a member of the bargaining
unit. The Company further argues that because Brown was not
a bargaining unit member either before he was hired or after he
was terminated, there was no obligation to bargain over the ap-
plication of the DRP policy to him. The Company argues the
issue of the DRP’s application does not vitally affect terms and
conditions of employment of unit employees and does not re-
quire it to bargain about it.
3. The Noel Canning issue
The Company asserted at trial and, reasserts in brief, the
Board, and those who represent it, had no authority to prosecute
this action pursuant to the reasoning in Noel Canning v. NLRB,
705 F.3d 490 (D.C. Cir. 2013), cert. granted 133 S.Ct. 2861,
(2013) (No. 12-1281), and circuit courts reaching similar con-
clusions. In Noel Canning, the circuit court found the recess ap-
pointments of two Board Members (Block and Griffin) were un-
constitutional and invalid leaving the Board without a quorum to
fulfill its responsibilities under the Act. The Board, in part, does
not accept the Noel Canning decision. The Board explained its
position on this point in Belgrove Post Acute Care Center 359
NLRB 633, 633 fn. 1 (2013), stating: “We recognize that the
United States Court of Appeals for the District of Columbia Cir-
cuit has concluded that the President’s recess appointments were
not valid. . . . However, as the court itself acknowledged, its
decision conflicts with rulings of at least three other courts of
appeals…This question remains in litigation, and pending a de-
finitive resolution, the Board is charged to fulfill its responsibil-
ities under the Act.”
Accordingly, I reject the Company’s contention the Board
lacks authority to proceed in this case.
4. The employee status of Brown
Inasmuch as the Company’s defense to the unilateral action
allegations rests on its contention Brown, at the time of the Com-
pany’s actions here, was not an employee of the Company within
the meaning of Section 2(3) of the Act; I address that issue first.
Section 2(3), in part, states:
The term “employee” shall include any employee, and shall not
be limited to the employees of a particular employer, unless the
Act [this subchapter] explicitly states otherwise, and shall in-
clude any individual whose work has ceased as a consequence
of, or in connection with, any current labor dispute or because
of any unfair labor practice, and who has not obtained any other
regular and substantially equivalent employment, . . . .
The Board historically has interpreted Section 2(3) of the Act
to include “members of the working class generally.” Briggs
Mfg. Co., 75 NLRB 569, 570 (1947). The Supreme Court has
consistently upheld the Board’s broad interpretation noting the
breath of Section 2(3) is “striking” and applies to any employee,
except those explicitly excluded. Applicants for employment are
statutory employees under Section 2(3), entitled to the Act’s pro-
tection. NLRB v. Town & Country Electric, Inc., 516 U.S. 85
(1995); see also Phelps Dodge Corp. v. NLRB, 313 U.S. 177
(1941). The Board in Little Rock Crate & Basket Co., 227 NLRB
1406 (1977), held that “Section 2(3) of the Act, as the Board has
long held that term means, ‘members of the working class gen-
erally,’ including ‘former employees of a particular employer.’”
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Guided by the principles set forth above, I find Brown, at all
times here, was an employee of the Company within the meaning
of Section 2(3) of the Act. Brown, as an applicant for employ-
ment with the Company, became an employee within the mean-
ing of the Act when he filled out his application for employment.
The DRP policy agreement Brown signed was part of his appli-
cation for employment with the Company. It is without question
Brown was an employee during the approximately 6 years he
worked for the Company as a Weekender and apprentice I. Like-
wise, as a former employee, in the circumstances here, Brown
remained a statutory employee of the Company. Brown has
since September 2009 challenged his suspension, and later dis-
charge, from the Company. A grievance was filed over Brown’s
suspension on September 25, 2009, claiming his suspension was
not for just cause. Although Brown’s suspension grievance was
denied, and he was thereafter discharged on March 11, 2010, he
continued to pursue his employment status through the parties
“collective-bargaining agreement grievance procedure,” as well
as, with State and Federal agencies, including his action in Dis-
trict Court. Brown’s discharge was upheld through the grievance
procedure, but, he has continued to pursue his employment sta-
tus. Brown’s status is still being pursued in the District Court.
In these circumstances, Brown remains an employee of the
Company even if he is labeled a former employee of the Com-
pany. The fact Brown no longer works on a daily basis at the
Company is not controlling here.
Having found Brown, at applicable times, an employee within
the meaning of the Act, I now considered the issue of the alleged
unilateral action by the Company and whether it gave notice and
an opportunity to bargain to the Union.
5. The unilateral action
Section 8(a)(5) and (d) of the Act requires an employer to bar-
gain in good faith with the collective-bargaining representative
of unit employees with respect to wages, hours, and other terms
and conditions of employment. NLRB v. Borg-Warner Corp.,
356 U.S. 342, 349 (1958). It is well established an employer
violates Section 8(a)(5) of the Act if it makes material changes
during the course of a collective-bargaining relationship on mat-
ters that are mandatory subjects of bargaining. NLRB v. Katz,
369 U.S. 736 (1962). Simply stated the Government can estab-
lish a prima facie violation of Section 8(a)(5) of the Act if it
shows an employer unilaterally made a material and substantial
change in a term of employment without negotiating with the
Union. The burden is on the employer to show, or demonstrate,
the unilateral change was somehow permissible. The Board held
in Utility Vault Co., 345 NLRB 79 fn. 2 (2005), that the imple-
mentation of a dispute resolution process which requires em-
ployees arbitrate claims involving their terms and conditions of
employment constitutes a mandatory subject of bargaining.
Guided again by the principles set forth above, I find the Com-
pany, unilaterally and without notice to, and without affording
the Union an opportunity to bargain, applied its DRP policy
against Brown, a unit employee, notwithstanding the fact, its
DRP policy, by its terms, only applied to “salaried and non-union
hourly employees.” The Company’s actions violate Section
8(a)(5) of the Act.
It is undisputed Brown worked in the unit during his entire
active employment at the Company. It is undisputed Brown has
pursued the status of his employment with the Company from
his suspension on September 23, 2009, until the present. It is
undisputed the Company applied its DRP policy to Brown on
June 4, 2012, when it filed its Motion to Dismiss or Stay and
Compel Arbitration in response to Brown’s April 3, 2012 Dis-
trict Court lawsuit regarding his suspension and discharge. It is
undisputed the Company applied its DRP policy to Brown with-
out notice to or affording the Union an opportunity to bargain.
As outlined above, the Government here established a prima
facie violation of Section 8(a)(5) of the Act. The Company
changed the terms and conditions of unit employees without no-
tice or bargaining. The establishment of a dispute resolution pro-
gram, or, the unilateral application, or attempted application, of
such a program for unit employees is a mandatory subject of bar-
gaining because it requires employees to arbitrate terms and con-
ditions of their employment, including suspension and dis-
charge. The Company does not dispute it took the unilateral ac-
tion.
The Company contends it did not have to bargain mainly be-
cause Brown was not an employee during his pre-employment
application process and after he was terminated. I reject the
Company’s contention it had no obligation to bargain when it
applied its DRP policy to Brown because Brown was not an “em-
ployee” within the meaning of the Act, at the time he agreed to
be bound by the DRP policy or when the Company applied it to
him. The Company’s position Brown was not an employee at
the application stage of his quest for employment with the Com-
pany is contrary to Board law. Brown was a unit employee his
entire active employment and remains, under the circumstances
here, an employee pursuant to Board precedent. Stated differ-
ently Brown was, and continues to be, an employee at all times
applicable here, including when the Company filed its June 4,
2012 Motion with the District Court. Brown is still, at present,
challenging his employment status in the District Court. The fact
Brown has not worked at the Company, nor paid union dues, for
the 2 years before he filed his District Court lawsuit does not
compel a different result than I reach here. Nor does the fact
Brown has, for some time, been fully employed at Bacardi Rum
require a different result than I reach here. As an employee
within the meaning of the Act, Brown is still a bargaining unit
employee.
In summary, I find the Company violated Section 8(1)(1) and
(5) of the Act when on June 4, 2012, it unilaterally applied its
DRP policy (normally applicable to salaried and nonunion em-
ployees) to Brown, a bargaining unit employee, without notice
to or affording the Union an opportunity to bargaining with re-
spect thereto.
CONCLUSIONS OF LAW
1. The Company, Anheuser-Busch, LLC., a successor to An-
heuser-Busch, Inc., is an employer engaged in commerce with
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, International Brotherhood of Teamsters Local
947 and International Brotherhood of Teamsters, Brewery and
Soft Drink Workers Conference are, jointly and severably labor
organizations within the meaning of Section 2(5) of the Act.
3. The Company, by filing a motion to dismiss or stay and
ANHEUSER-BUSCH, LLC 15
compel arbitration to its Dispute Resolution Program (DRP) in
response to Matthew C. Brown’s District Court lawsuit, changed
the terms and conditions of its unit employees and violated Sec-
tion 8(a)(5) and (1) of the Act.
REMEDY
Having found the Company has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and to
take certain affirmative action designed to effectuate the policies
of the Act. I recommend the Company be ordered to forthwith
withdraw that portion of its defense in Brown’s District Court
lawsuit that seeks to have the District Court direct the matter be
decided pursuant to the Company’s DRP policy. I recommend
the Company, upon request of the Union, bargain in good faith
with the Union concerning the application of its DRP policy to
unit employees. I also recommend the Company be ordered,
within 14 days after service by the Region, to post an appropriate
“Notice to Employees” in order that employees may be apprised
of their rights under the Act, and the Company’s obligation to
remedy its unfair labor practices.
On these findings and conclusions of law and on the entire
record, I issue the following recommended6
ORDER
The Company, Anheuser-Busch, LLC., a successor to An-
heuser-Busch, Inc., Jacksonville, Florida, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Requesting the District Court in Brown’s Title VII lawsuit
to have the matter before the District Court referred to and de-
cided through the Company’s DRP policy.
(b) Unilaterally changing terms and conditions of employ-
ment of unit employees by applying its DRP policy to unit em-
ployees.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Forthwith withdraw that portion of its defense in Brown’s
District Court lawsuit that requests the District Court have the
matter before it decided pursuant to the Company’s DRP policy.
(b) Upon request of the Union bargain in good faith with the
Union concerning the application of its DRP policy to unit em-
ployees.
(c) Within 14 days after service by the Region, post at its
Jacksonville, Florida facility, copies of the notice marked “Ap-
pendix.”7 Copies of the notice, on forms provided by the Re-
gional Director for Region 12, after being signed by the Com-
pany’s authorized representative, shall be posted by the Com-
pany and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
Company to ensure that the posted notices are not altered, de-
faced, or covered by any other material. In addition to the phys-
ical posting of paper notices, notices shall be distributed elec-
tronically, such as email, posting on an intranet or an internet
site, or other electronic means, if the Company customarily com-
municates with its employees by such means. In the event that
during the pendency of these proceedings, the Company has
gone out of business or closed the facility involved in these pro-
ceedings, the Company shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current and former employees
employed by the Company at any time since June 4, 2012.
Dated at Washington, D.C. September 10, 2013
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 has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT unilaterally change terms and conditions of em-
ployment of unit employees by applying our Dispute Resolution
Program policy to our unit employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL forthwith withdraw that portion of our defense in
Matthew C. Brown’s District Court lawsuit that requests the Dis-
trict Court have the matter before it decided pursuant to our Dis-
pute Resolution Program policy.
WE WILL upon request of the Union bargain in good faith with
the Union concerning the application of our DRP policy to unit
employees.
ALL OUR EMPLOYEES are free to become or remain, or refrain
from becoming or remaining, members of any labor organiza-
tion.
ANHEUSER-BUSCH, LLC
7 If 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 read “Posted Pursuant to a Judgment the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/12-CA-094114 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.