Nabisco, Inc. v. NLRB

• Decision Date: 20 June 1973
• Docket Number: Docket 72-2073.,No. 718,718
• Citation: 479 F.2d 770
• Parties: NABISCO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

479 F.2d 770 (1973)

NABISCO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 718, Docket 72-2073.

United States Court of Appeals, Second Circuit.

Argued May 4, 1973.

Decided June 20, 1973.

Wesley J. Fastiff, San Francisco, Cal. (Littler, Mendelson & Fastiff, San Francisco, Cal., on the brief), for petitioner.

Charles N. Steele, Washington, D. C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Acting Asst. Gen. Counsel, Stanley R. Zirkin, Atty., N. L. R. B., on the brief), for respondent.

Before FRIENDLY and HAYS, Circuit Judges, and JAMESON, District Judge.^*

HAYS, Circuit Judge:

This is a petition for review of an order of the National Labor Relations Board declining to decide a contractual dispute pending submission of the dispute to the grievance procedure prescribed by the parties in their collective bargaining agreement while retaining jurisdiction to act in the event that the dispute is not resolved. We deny the petition for review.

The petitioner, Nabisco, Inc., is engaged in the manufacture, distribution and sale of cookies, crackers and related products. Nabisco has a warehouse and distribution facility at Emeryville, California, where it employs eleven drivers to deliver Nabisco's bakery products to various retail stores, military installations, and other outlets in Alameda, Contra Costa, Sonoma, Mendocino, and Lake Counties in California. These drivers are represented by the Brotherhood of Teamsters & Auto Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America.

Besides delivering the bakery products, the driver is responsible for having the customer sign for the merchandise or for collecting payment in the form of cash or check. Approximately twenty per cent of Nabisco's customers pay for their purchases at the time of delivery by either cash or check. Cash payments amount to from five to ten per cent of the total dollar value of all deliveries. The drivers for Nabisco collected such payments for over 20 years and the practice was recognized in the collective bargaining agreement between the Union and the Company. Article 47 of the agreement states:

"Section 3. Money Receipt

"Employees handling money shall account for and remit to the employer monies so collected at completion of the days\' work. The employer shall give the employee a receipt for the monies so paid in or the employee will not be held responsible for the money."

In April, 1969 as a result of the increased number of robberies and assaults on delivery drivers in the Oakland and East Bay areas, the Oakland Police Department sent a letter¹ to the Truck Drivers Local suggesting various precautions to avoid such crimes. Among these suggestions was a recommendation that the drivers not carry large sums of money. The Union sent copies of the letter to Nabisco and its competitors, and in subsequent meetings with Nabisco requested the company to adopt a no-cash collection policy. Two of Nabisco's competitors with whom the Union had collective bargaining agreements agreed to adopt a no-cash policy. Nabisco refused to adopt the policy, contending that both parties were bound by the collective bargaining agreement which authorized the cash collection policy. Nabisco indicated that it would take certain other safety precautions, such as installing safes and wire mesh tailgates on the delivery trucks. Nabisco claimed these methods had proved successful in other areas and argued that to adopt a no-cash collection policy would put it at a substantial competitive disadvantage. The Union rejected the Company's proposal.

On July 16, 1969 the Union informed Nabisco that the drivers would no longer collect cash. However in fact when company officials told the drivers that it would be a violation of the contract to refuse to collect, the drivers continued the practice of collecting. Subsequently, on September 11, at a meeting of the drivers of three companies, including Nabisco, the drivers voted to refuse to make any more cash collections. After this vote, and after another unrelated strike against Nabisco had ended, the drivers, with two exceptions,² refused to collect cash.

On November 10, 1969, the Company filed a charge with the National Labor Relations Board claiming that the Union's actions constituted a unilateral change in the contract in violation of Section 8(b)(3) of the National Labor Relations Act. Later the Company also charged that the Union in threatening the drivers violated Section 8(b)(2) and (1)(a) of the Act. The trial examiner found that the Union had violated the above sections of the Act. The National Labor Relations Board, without passing on the findings of the trial examiner, decided by a three to two vote to defer action on the Company's claim until the parties had pursued the grievance procedures set out in the collective bargaining agreement.

The agreement provides that grievances affecting the relations of the employer and the union shall first be taken up between the local union and the employer involved. If they fail to resolve the grievance, it is to be reduced to writing by the grieving party and referred to a joint labor management committee. This...