Nabisco, Inc. v. National Labor Relations Board, 479 F.2d 770, 2d Cir. (1973)
Nabisco, Inc. v. National Labor Relations Board, 479 F.2d 770, 2d Cir. (1973)
Nabisco, Inc. v. National Labor Relations Board, 479 F.2d 770, 2d Cir. (1973)
2d 770
83 L.R.R.M. (BNA) 2612, 71 Lab.Cas. P 13,822
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.
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:
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.
8
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
committee is composed of an equal number of union and management
representatives. If this committee decides the grievance by majority vote, the
result is binding on the parties. If the committee deadlocks it can by majority
vote submit the dispute to arbitration. If the committee is unable to reach a
majority vote on arbitration the parties are free to use economic measures to
resolve the dispute, including a strike or lockout.
10
The petitioner contends that the decision of the majority of the Board in the
instant case to defer consideration of the unfair labor practice issues until the
grievance procedure agreed upon by the parties has been utilized contravenes
the policies of the National Labor Relations Act. We disagree.
11
12
"Final
adjustment by a method agreed upon by the parties is hereby declared to be
the desirable method for settlement of grievance disputes arising over the
application or interpretation of an existing collective bargaining agreement."
13
The petitioner contends that the Board should defer only when the dispute
S.Rep.No.105; 80th Cong., 1st Sess. p. 23, I Legislative History of the Labor
Management Relations Act of 1947, p. 429.
16
In furtherance of this legislative policy the Board has decided that it should not
"assume the role of policing collective contracts between employers and labor
organizations by attempting to decide whether disputes as to the meaning and
administration of such contracts constitute unfair labor practices under the Act."
Consolidated Aircraft Corp., 47 NLRB 694, 706 (1943), enf'd in pertinent part,
141 F.2d 785 (9th Cir. 1944).
17
18
Petition denied.
Of the United States District Court for the District of Montana, sitting by
designation
This letter noted that more than 25 armed robberies of delivery vehicles had
occurred in Oakland in the first three months of 1969
One driver continued to collect cash for only two days and the other stopped
the collection of cash on November 19