N.L.R.B. v. Safeway Stores, Inc.
| Decision Date | 16 June 1980 |
| Docket Number | No. 78-3123,78-3123 |
| Citation | 622 F.2d 425 |
| Parties | 104 L.R.R.M. (BNA) 2765, 89 Lab.Cas. P 12,113 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAFEWAY STORES, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kenneth B. Hipp, N.L.R.B., Washington, D. C., argued for petitioner; William R. Stewart, N.L.R.B., Washington, D. C., on brief.
Kathleen M. Kelly, San Francisco, Cal., argued for respondent; Wesley J. Fastiff, San Francisco, Cal., on brief.
On Application for Enforcement of an order of The National Labor Relations Board.
Before ANDERSON, SKOPIL and THORNBERRY, Circuit Judges.
The National Labor Relations Board (the Board) petitions for enforcement of its order requiring Safeway Stores, Inc. (Safeway) to produce for inspection by General Truck Drivers, Warehousemen, Helpers & Automotive Employees, Local No. 315 (the Union) certain documents pertaining to a new employee productivity measurement system. 236 NLRB No. 142. The Union asked for the documents to help it process the grievances of seventeen employees who were returned to their original departments after transferring within Safeway's distribution
center. Safeway contended the decisions to return the employees were not grievable. It refused to provide the requested documents, until grievability had been arbitrated. We grant enforcement.
Safeway operates a large retail grocery warehouse and distribution center. The center is composed of several departments, including grocery warehouse, frozen food warehouse, "pre-pakt", and crate yard. In 1977 employees in these four departments were covered by three separate collective bargaining agreements between Safeway and the Union. Grocery warehouse and frozen food warehouse department employees were covered by one contract. Pre-pakt department employees were covered by a second contract, and crate yard employees were covered by a third. Each of the contracts contained a binding arbitration provision and provided for interdepartmental transfers, subject to certain conditions.
The transfer provision in the contract governing grocery warehouse and frozen food warehouse provides:
"In the event that the employee is not able to perform the work satisfactorily within thirty (30) days or by his/her request within thirty (30) days, he/she shall return to his/her former position."
The provision in the pre-pakt employees' contract provides:
"There will be a trial period of up to thirty (30) days to qualify, at the option of the Employer and the employee."
The crate yard employees' contract transfer provision said:
"The thirty (30) day probationary period generally set forth for new employees is waived as it applies herein."
The parties agree that a transferee to the grocery or frozen food warehouse departments became subject to the contract governing employees of those departments. There is a dispute over the interpretation of these transfer provisions, alone or together.
In early May 1977 several employees transferred from other departments in the distribution center to the grocery warehouse department. Later seventeen transferees from the frozen food warehouse, pre-pakt, and crate yard departments were told they did not meet production standards and would be transferred back to their original departments. The seventeen employees filed grievances with the Union.
On June 15, 1977 the Union and Safeway held a grievance meeting. The Union requested to see all production records for grocery warehouse department swing shift regular employees, new employees, and the transferred employees for the period from January 1 through June 15, 1977.
About April 11, 1977 Safeway had instituted a new employee production measurement system. The old system measured productivity on a pieces-per-hour basis. The new system, method-time-measurement (or MTM), involved recording and evaluating the time each employee required to complete work on an order.
Safeway refused to produce the records. It insisted that the return of transferees to their old departments within thirty days of transfer was within management's discretion and was not grievable under the contracts. The parties agreed to arbitrate the transfer dispute.
The Union persisted in its demand for the records. Safeway continued to refuse to produce them until the grievability issue was arbitrated. On June 17, 1977 the Union filed an unfair labor practice charge with the Board, complaining of Safeway's refusal to produce.
On October 27, 1977 a hearing on the unfair labor practice charge was held before an administrative law judge (ALJ). At the time of the administrative hearing the arbitration hearing had been scheduled, but the issues to be submitted to the arbitrator were still in dispute. Safeway insisted that the threshold issue of grievability was to be arbitrated first. The Union took the position that the entire dispute over the transfers was before the arbitrator. An agreement to first arbitrate only the grievability issue was not reached until a discussion immediately before the arbitration hearing on December 9, 1977.
On January 25, 1978 the ALJ filed his decision. He found in favor of the Union and recommended an order requiring Safeway to produce the requested records and to post an appropriate notice. On June 21, 1978 the Board issued its decision and order. The Board affirmed the ALJ's rulings, findings and recommendations and adopted his recommended order.
On December 1, 1978 the arbitrator issued his award. He found the return of the transferred employees nonarbitrable.
The Board now seeks enforcement of its order. Safeway cross-petitions for review.
Safeway contends that the Board should have deferred to the arbitrator's grievability decision before proceeding to consider the unfair labor practice charge. This contention takes two forms. First, Safeway argues that deference to arbitration in this type of dispute is the preferred course. Under the deference doctrine announced in Collyer Insulated Wire, 192 NLRB 837 (1971), the Board should have deferred to arbitration in this case. Second, Safeway asserts that the grievability of the underlying dispute was essential to the relevance of the information requested. The Board should therefore have deferred to the arbitrator's finding of nongrievability. This second argument goes to the merits of the Board's order and not to the Board's procedure.
In Collyer Insulated Wire the Board recognized that where declaration of an employer's duties under section 8(a)(5) depends upon interpretation and application of a collective bargaining agreement, it may be appropriate for the Board to defer its own proceedings until the contract dispute has been resolved by the mechanisms established by the parties. Thus, where a grievance and arbitration procedure has been agreed to, the parties should be encouraged to use it to resolve matters of contract interpretation.
On review we are limited to whether the Board abused its discretion in reaching its deferral decision. Hawaiian Hauling Services, Ltd. v. NLRB, 545 F.2d 674, 676 (9th Cir. 1976), cert. denied 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1061 (1977). This court will not deny enforcement unless the Board clearly departs from its own standards or its standards are themselves invalid. Id.
As set forth in Collyer, two factors must be considered in determining whether the Board departed from its own standards when it refused to defer to arbitration in this case. The first is whether the issue before the Board is one of contract interpretation entrusted by the parties to resolution by arbitration in the first instance. The second factor is the likelihood that resort to arbitration will dispose of the controversy in a manner that does not contravene the purposes of the National Labor Relations Act.
The sole issue before the Board was whether or not Safeway had committed an unfair labor practice by refusing to produce the requested documents. This is primarily a statutory issue. The dispute submitted to arbitration did not concern the Union's right to the documents. It concerned whether Safeway had wrongfully returned the transferred employees for failure to meet production standards. We recognize that the grievability of the dispute was a threshold issue presented to the arbitrator. Grievability is not a threshold issue in the unfair labor practice inquiry. The issue before the Board was not primarily one of contract interpretation.
The second factor in Collyer deference is the likelihood that arbitration will resolve the controversy. We now know that if the Board had postponed its action until the arbitrator made his award, the dispute over document production would have disappeared. We cannot say that the likelihood of this result was obvious when the Board made its decision not to defer. The question whether Safeway was entitled to await arbitration of grievability before it produced any documents was not, and could not be, resolved by arbitration.
In these circumstances we cannot say that the Board abused its discretion by refusing to defer to arbitration. The Board did not depart from its own standards. Those standards are not invalid.
To continue reading
Request your trial
-
Alphonsus v. Holder
...of administrative law that an agency abuses its discretion if it “clearly departs from its own standards.” NLRB v. Safeway Stores, Inc., 622 F.2d 425, 428 (9th Cir.1980). “We generally expect agencies to deal consistently with the parties or persons coming before them.... Thus, while an age......
-
General Motors Corp., Inc. v. N.L.R.B.
...enable the requesting party to intelligently evaluate and process grievances. NLRB v. Acme Industrial Co., supra; NLRB v. Safeway Stores, Inc., 622 F.2d 425, 429 (9th Cir.1980); San Diego Newspaper Guild, Local No. 95 v. NLRB, 548 F.2d 863 (9th Cir.1977). In determining if an employer is ob......
-
Servair, Inc. v. N.L.R.B.
...invalid." (Footnote omitted.) Id.; see also Ad Art, 645 F.2d at 674-675; Max Factor, 640 F.2d at 201; N.L.R.B. v. Safeway Stores, Inc., 622 F.2d 425, 428 (9th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Alfred M. Lewis, Inc. v. N.L.R.B., 587 F.2d 403, 407 (......
-
Ad Art, Inc. v. N.L.R.B.
...its own deferral standards or if the standards themselves are invalid. Id. See also Max Factor, supra, at 201, NLRB v. Safeway Stores, Inc., 622 F.2d 425, 428 (9th Cir. 1980); NLRB v. Pincus Brothers, Inc.-Maxwell, 620 F.2d 367, 372 (3d Cir. 1980); Alfred M. Lewis, Inc. v. NLRB, 587 F.2d 40......