Bakery, Confectionery and Tobacco Workers Intern. Union 25 v. N.L.R.B., 83-1416
| Decision Date | 27 March 1984 |
| Docket Number | No. 83-1416,83-1416 |
| Citation | 730 F.2d 812 |
| Parties | 115 L.R.R.M. (BNA) 3390, 235 U.S.App.D.C. 50, 100 Lab.Cas. P 10,890 BAKERY, CONFECTIONERY AND TOBACCO WORKERS INTERNATIONAL UNION 25, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Pet Incorporated, Bakery Division, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
James B. Coppess, Atlanta, Ga., for petitioner.
Sue Gunter, Atty., N.L.R.B., Washington, D.C., with whom Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., was on brief for respondent.
Michael C. Towers, Atlanta, Ga., for intervenor.
Before SCALIA and STARR, Circuit Judges, and GESELL, * United States District Judge for United States District Court for the District of Columbia.
Opinion for the Court filed by District Judge GESELL.
This is a petition by the Bakery, Confectionery and Tobacco Workers International Union Local 25 (Union) for review of a decision and order of the National Labor Relations Board (Board). The dispute concerns work rules relating to excused and unexcused absences promulgated by the employer, Pet Incorporated, Bakery Division (Pet), which has intervened in this action. The Union argues that the work rules at issue constituted a unilateral modification of the collective bargaining agreement then in effect, thus violating section 8(a)(5) and (d) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(5), (d). Pursuant to a mandatory arbitration provision in the agreement this question was submitted to an arbitrator, who denied the grievance against Pet. After issuance of a complaint by the Regional Director for Region 10 of the Board, the matter was then heard by an Administrative Law Judge (ALJ), who recommended that the Board defer to the decision of the arbitrator. In a three-to-two decision, the Board adopted this recommendation and the administrative complaint was dismissed. This appeal followed. Because we conclude that the Board's decision does not constitute an abuse of discretion, we affirm.
The Union and Pet have been parties to a series of collective bargaining agreements dating back to 1971 and had maintained a harmonious relationship for several years prior to the controversy at issue. The particular agreement in effect when this controversy arose covered a period of approximately three years, commencing on May 23, 1978. That contract contained a "no-strike" clause and provided that questions "of interpretation or application of any of the provisions" of the agreement were subject to mandatory arbitration. It also contained a general provision, carried over without change from the preceding agreement, which governed excused and unexcused absences. 1
SECTION 5.10. If an employee is to be absent for any reason he should notify the Company or his supervisor before his shift begins, if possible. If he fails to notify the Company he shall be charged with an unexcused absence.
Three (3) unexcused absences within a one-year period shall be the basis for discharge. Excessive excused absences will be basis for discipline, up to and including discharge.
A work rule which had been in effect since approximately 1973 provided that "[a]n employee who is late for work or who will be absent from work must call his Supervisor at least one (1) hour before his scheduled starting time."
In July, 1978, Pet proposed a revised set of work rules which included new provisions governing absenteeism and tardiness. The Union objected to the new provisions, and consideration of the proposed rules was deferred. The new rules were raised again in March, 1979, and the Union renewed its objections. A period of negotiation The provisions of the new work rules which prompted the strike provided:
followed, during which Pet made significant concessions. 2 A bargaining impasse was reached, however, and on May 31, 1982, the Union formally rejected the proposed rules on the ground that they violated Section 5.10 of the collective bargaining agreement. On June 1, 1982, Pet implemented the new rules over the Union's objections, and a wildcat strike broke out the same day. Ninety-eight strikers who refused to return to work were subsequently discharged by Pet pursuant to the agreement's no-strike clause
All absences are considered as unexcused absences unless specifically excused by supervisors. In the event an employee is going to be absent for any reason he must notify the Company at least one hour before his scheduled starting time. Failure to do so will make the absence unexcused regardless of the reason for the absence....
Excessive Absenteeism for Any Reason:
Excessive absenteeism occurs when an employee is absent more than ten occurrences in a year for any reason, whether or not an absence is excused or unexcused. The management will take into account if the absence is caused by a temporary illness whose existence has been established beyond all doubt.
The Union filed a grievance addressed to the new work rules and the termination of striking employees. The arbitrator who heard the grievance found that the company had negotiated with the Union in good faith until an impasse was reached, 3 that the new work rules did not conflict with the negotiated agreement, and that hence the discharge of striking employees for violating the agreement's no-strike clause was legal. FMCS Case No. 79K/24447 (1980) (Dallas, Arb.).
The Regional Director for Region 10 thereafter issued a complaint raising the contentions put forth by the Union. The matter was fully heard by the ALJ, who held that the arbitrator's finding that the work rules were not in conflict with the agreement was "a reasonable and arguable one which does not appear to be clearly at odds with Board precedent or otherwise repugnant to the Act," and hence the arbitrator's decision was entitled to deference; the ALJ therefore recommended that the complaint be dismissed. Case No. 10-CA-14750, at 13 (1981).
By a three-to-two vote the full Board adopted the recommendations of the ALJ. The Board concluded that the arbitrator's findings were "consistent with Board precedent" and that there was "no basis for concluding that [ ] a tightening of the work rules necessarily results in a modification of the collective-bargaining agreement." The Board concluded that under such circumstances deferral to the arbitrator's findings was warranted, and dismissed the complaint. 264 N.L.R.B. No. 166, at 8-10 (1982).
The issue on appeal is whether the Board reasonably exercised its discretion in deferring to the arbitrator. The Union urges that in so deferring the Board abused its discretion by endorsing an award repugnant to the purposes and policies of the Act.
In its seminal decision, Speilberg Mfg. Co., 112 N.L.R.B. 1080 (1955), the Board announced that it would defer to an arbitration award where the proceedings before the arbitrator were fair and in accord with procedural regularity, the parties had agreed to be bound, and the decision of the arbitrator was not clearly repugnant to the purposes and policies of the Act. This holding recognized long-standing national policy favoring resolution of labor disputes through arbitration. 4 The approach taken by the Board in Spielberg has been approved by this Court in the past, and remains the law today. Associated Press v. NLRB, 492 F.2d 662, 667 (D.C.Cir.1974). The Board's views in this area have been very recently reinforced and to some extent clarified in Olin Corporation, 268 N.L.R.B. No. 86 (1984), in the following terms:
[W]e adopt the following standard for...
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