United Parcel Service

National Labor Relations Board - Board Decisions

Mar 24, 1977

228 N.L.R.B. 1060 (N.L.R.B. 1977)

1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Parcel Service and Leo G . Kohls. Case 9-CA-
9873
March 24, 1977
DECISION AND ORDER
On June 15, 1976, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and the Respondent filed an answering brief.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only insofar as they are consistent with our decision,
infra.
The underlying issue is whether the Respondent
discharged an employee, Kohls, because he had
asserted a right under a collective-bargaining agree-
ment to refuse to operate unsafe equipment and
thereby violated Section 8(a)(1) of the Act. The
Respondent moved that consideration of that issue
be deferred pending resolution of the issues involved
in Kohls' discharge pursuant to grievance and
arbitration provisions in the collective-bargaining
agreement . The motion was granted by the Adminis-
trative Law Judge.
Following the Administrative Law Judge's Deci-
sion, a majority of the Board overruled an earlier
decision I to defer cases involving individual employ-
ee rights protected by Section 7 of the Act to
arbitration under contract grievance procedures.2
That decision is controlling here; for the complaint
alleges that Kohl was discharged for exercising an
individual employee right protected by Section 7. We
shall therefore remand this proceeding to the
Administrative Law Judge for a hearing and determi-
nation on the merits of the allegations of the
complaint.
ORDER
It is hereby ordered that this proceeding be, and it
hereby is, remanded to Administrative Law Judge
Ralph Winkler for such action as is required in light
of our decision not to defer consideration of the
issues raised.
Members Penello and Walther, concurring:
Although we would also remand this proceeding
for further hearing, we would do so, not because we
find deferral inappropriate in Section 8(a)(1) cases,
but because issues of fact were raised which may
make deferral inappropriate. Generally, we would
defer to the grievance procedure in cases such as this.
228 NLRB No. 136
See our dissent in General American Transportation
Corp., supra. Here, however, it is alleged that the
Union's interests are opposed to those of the
Charging Party. If in fact the Union is hostile to the
Charging Party, we would not defer. Kansas Meat
Packers, 198 NLRB 543 (1972). It is for these reasons
that we would remand.
I National Radio Company, Inc., 198 NLRB 527 (1972) (Members
Fanning and Jenkins dissenting).
2 General American Transportation Corp., 228 NLRB 102 (1977) (Chair-
man Murphy concurring, Members Penello and Walther dissenting).
DECISION
STATEMENT OF THE CASE
RALPH WINKLER , Administrative Law Judge: Upon a
charge filed by Leo Kohls, an individual, the General
Counsel issued a complaint on February 24, 1976 , to which
Respondent filed an answer . The hearing opened on May
11, 1976. After receiving the formal papers and various
other documents , but without receiving evidence respecting
the merits of the complaint , I ruled on an issue raised in
Respondent's answer that further proceedings herein were
inappropriate at this time under Collyer Insulated Wire, A
Gulf and Western Systems Co., 192 NLRB 837 (1971). The
General Counsel objected both to this ruling and to a
denial of a continuance requested by him. I advised the
parties that I would issue a decision on both rulings and
that the appeal period would not begin running until such
issuance.
Upon the record in the case, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
United Parcel Service is an Ohio corporation engaged in
the transportation of goods by truck throughout the United
States. The parties agree , and I find, that Respondent is an
employer within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 413, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein called the Union), is a labor organization within
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
This case involves only the discharge of Charging Party
Kohls at Respondent's Columbus , Ohio, terminal on
November 26, 1975. The complaint alleges that Respon-
dent took such action because Kohls was "asserting his
rights under a collective bargaining agreement to not
operate unsafe equipment of Respondent" and that
Respondent thereby violated Section 8(a)(1) of the Act.
Claiming that it discharged Kohls for "cause ," Respondent
UNITED PARCEL SERVICE 1061
further moved to dismiss the complaint under the Spiel-
berg-Collyerl line of cases upon the claim that Kohls'
discharge is cognizable under the grievance procedures of a
subsisting contract with the Union. Respondent also
asserts in such connection that the Board should accord-
ingly direct the parties to handle the Kohls matter under
those contract procedures.
The parties agree that the aforementioned grievance
provisions have been in effect at all relevant times here.
These provisions provide for final and binding resolution
of grievances by a joint committee and are substantially
similar, if not identical, to procedures in contracts that the
Board and the Supreme Court have respectively accepted
in Spielberg situations and for the purposes of enforcing an
award by such joint committee under Section 301. Denver-
Chicago Trucking Company, Inc., 132 NLRB 1416 (1961);
General Drivers, Warehousemen and Helpers, Local Union
No. 89, et al. v. Riss & Co., Inc., 372 U.S. 517 (1963). Thus
no party contends that Kohls' discharge was not grievable
under the disputes machinery of the Respondent-Union
contract; nor is it contended that such contract provisions
otherwise fail to meet Spielberg-Collyer standards.
The Union, upon notification of Kohls' discharge,
promptly invoked the grievance provisions of its contract
by filing with Respondent a notice of appeal on December
1, 1975, and it thereby sought Kohls' "reinstatement with
full seniority and all monies and benefits lost." Union
Business Agent James Kirk also informed Kohls of this
appeal filed by Kirk. By letter dated December 8, 1975,
Kohls advised the Union that "I disassociate myself from
that grievance." The joint grievance committee met on
January 19, 1976. The minutes of that meeting show that
the joint committee determined the grievance as "with-
drawn," in accordance with Kohls' December 8 letter and
without addressing the merits of the grievance.
On December 1, 1975, Kohls meanwhile filed the charge
in the instant case. He also filed an 8(b)(l)(A) charge (Case
9-CB-3117), 2 days later, against the Union alleging
restraint and coercion respecting his "rights to engage in
concerted activity on behalf of P.R.O.D. (Professional
Drivers for Health and Safety).... " The Regional
Director advised Kohls on January 30, 1976, that a careful
investigation showed there was insufficient evidence of a
violation to warrant a complaint in the CB case, and that
Kohls could appeal to the General Counsel the refusal to
issue a complaint. So far as appears, Kohls did not file an
appeal.
A. Is the Affected Employee's Acquiescence a
Requirement of Deferral Under Collyer?
On May 10, 1973, the General Counsel publicly issued a
document entitled "Arbitration Deferral Policy under
Collyer-Revised Guidelines ." These guidelines for Re-
gional Office personnel state, in part (at pp. 34-35, fn. 57),
that a condition of Collyer applicability is that all parties
(the contracting Employer and the Union and the affected
employee) acquiesce in deferral to arbitration and that
"this `acquiescence ' requirement would preclude deferral
under the Collyer policy where the individual charging
party affirmatively expresses to the regional office his
refusal to be bound by, and opposition to, arbitration of
the dispute underlying his charge." Kohls having expressed
his opposition to the processing of his grievance by
"disassociating" himself therefrom, the General Counsel
thus contends that the Collyer doctrine is inapplicable and
that, without further showing, the operative contract
procedures do not bar the processing of Kohls' unfair labor
practice charge against Respondent United Parcel in the
instant case. What this means is that in the General
Counsel's view an alleged discriminatee covered by a
contract providing for final and binding arbitration of his
discharge may ignore the underlying policy of Collyer by
objecting to such arbitration for any reason or for no
reason at all.
Considering the present development of Spielberg-Col-
lyer principles, it would appear unnecessary, even presump-
tuous, to use this decision as a vehicle for restating the
statutory and judicial considerations underlying the defer-
ral doctrine. They are spread out for all to read in those
and succeeding cases . As an original proposition I would
consider the General Counsel's position as inconsistent
with and permitting a circumvention of the deferral
doctrine. But it is not a novel matter, for the Board has
already stated in this connection, "That employees, as well
as the Employer and the Union, are bound by the
bargaining agreement is fundamental to collective bargain-
ing." McLean Trucking Co., 202 NLRB 710, 712, fn. 5
(1973), reversed on other grounds sub nom. Banyard v.
N.L.RB., 505 F.2d 342 (C.A.D.C., 1974); Great Scott
Supermarkets, Inc., 206 NLRB 447,453 (1973). ("Addition-
ally, it would seem to thwart the Board policy which
Collyer has established to permit individual alleged
discriminatees to refuse to go to arbitration where the
contract between their bargaining representative and their
employer provides for the same merely because the
individuals involved have some imagined grievance against
the Union.") In addition to the Steelworkers trilogy and
other judicial authorities discussed in the Board's Collyer
decision, see Republic Steel Corp. v. Maddox, 379 U.S. 650,
652-653 ("As a general rule in cases to which federal law
applies, federal labor policy requires that individual
employees wishing to assert contract grievances must
attempt use of the contract grievance procedure agreed
upon by employer and union as the mode of redress... .
A contrary rule which would permit an individual
employee to completely sidestep available grievance
procedures in favor of a lawsuit has little to commend it.");
cf. Black-Clawson Co., Inc., Paper Machine Division v.
International Association of Machinists, Lodge 335, District
137, et al., 313 F.2d 179 (C.A. 1, 1962).
I accordingly conclude that the mere refusal by an
affected employee to go to arbitration under appropriate
contract procedures is insufficient, without more, to
preclude deferral under Spielberg-Collyer policy.
1 Spielberg Manufacturing Company, 112 NLRB 1080 (1955); Collyer
Insulated Wire, A Gulf and Western System Co, 192 NLRB 837 (1971).
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Denial of a Continuance
After advising the parties that I would grant Respon-
dent's motion to defer further action herein until Kohls'
discharge be processed under the aforementioned contract
procedures , the General Counsel requested that the hearing
be continued . The stated purpose of the requested
continuance was, in effect, to enable the General Counsel
to investigate and then submit evidence at a later date that
the Union was purportedly hostile to Kohls and that
deferral under Collyer was thus inappropriate under Kansas
Meat Packers, 198 NLRB 543 (1972). Asserting that it had
raised the Collyer-Spielberg contention in its answer filed
well before the hearing , the Respondent contended that it
was untimely for the General Counsel to inject a Kansas
City issue for the first time at the hearing and then to
request a continuance for such purpose , and Respondent
also referred to the dismissal by the Regional Office of the
aforementioned CB charge against the Union . I denied the
continuance , and I also rejected an offer thereupon made
by the General Counsel to call a witness in support of his
Kansas City contention.
The reason for refusing to hear testimony sought to be
adduced by the General Counsel in support of the Kansas
City contention was that I considered it unfair to receive
such evidence, without prior notice to the Union 2 (as well
as to Respondent), particularly in view of the fact that such
proffered testimony might spill over into the area covered
by the dismissed CB charge and could possibly result in
reviving such charge.
The Kansas City principle is, needless to say, an
important safeguard in the administration of the Spielberg-
Collyer deferral doctrine, too important to be rejected for
procedural niceties . However, the Union and the Respon-
2 The Union was not a party to this proceeding.
3 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and the recommended Order herein shall, as provided in Sec.
dent also should be protected in their procedural rights. I
accordingly believe that Kohls' discharge should be
handled under the aforementioned contract provisions, but
that the procedural fairness of the Joint Committee'
determination may still be tested under Kansas City
considerations , should the General Counsel be persuaded
that a purported hostility of the Union to Kohls was such
as to make it unfair to defer to the then completed arbitral
process . Spielberg (postarbitral), as well as Collyer (prearbi-
tral), situations must satisfy Kansas City standards. (See
Banyard v.N.LRB, supra ; International Harvester Co., 138
NLRB 923, 927 (1962), stating that the Board will not defer
to the arbitral process where it "clearly appears that the
arbitration proceedings were tainted by fraud, collusion,
unfairness , or serious procedural irregularities or that the
award was clearly repugnant to the purposes and policies
of the Act.")
Upon the foregoing findings and conclusions , and the
record herein, and pursuant to Section 10(c) of the Act, I
hereby recommend the following:
ORDERS
The complaint is dismissed except that jurisdiction is
retained for the purpose of entertaining an appropriate and
timely motion for further consideration upon a proper
showing that (a) the dispute as to Kohls' discharge has not
been submitted promptly to resolution under contract
procedures , or (b) the dispute has not been resolved by
such procedures or the final determination thereunder is
not wholly dispositive of the issues in this case , or (c) the
mentioned contract procedures have not been fair and
regular or have reached a result repugnant to the Act.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.