NLRB Advice Memoranda, J. Arnhrogi Food Distribution, National Labor Relations Board, (Aug 3, 2023)

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This case was submitted for advice, per Memorandum GC 23-04, as to whether it is an appropriate vehicle to reconsider Johnson Controls Inc., 368 NLRB No. 20(2019) ​     ​. Because we find no violation under extant law and there are no related meritorious allegations, this is not an appropriate vehicle in which to reconsider Johnson Controls. Accordingly, the Region should dismiss the charge, absent withdrawal.

Here, the Union represented a bargaining unit of the Employer's pullers with the most recent collective-bargaining agreement in effect from 2017 until June 30, 2022. The Union also represents bargaining units of drivers, packers and custodians, and warehouse men at the Employer's facility, and bargained separate contracts for those units. On April 15, 2022, the Employer received a disaffection petition signed by the majority of the pullers bargaining unit stating that they no longer wished to be represented by the Union. The Employer informed the Union that it would be withdrawing recognition from the Union for the pullers unit when the contract expired on June 30, and accordingly would not bargain for a successor contract. (The Employer and Union did engage in successor negotiations for the other bargaining units at the facility.) On May 11, the Union filed this charge alleging that the anticipatory withdrawal of recognition was unlawful, but at no time alleged that the Employer unlawfully interfered with the disaffection petition, committed any unfair labor practices that tainted the employees' showing of disaffection, or made any indication that it had objective proof that it still had majority support from the bargaining unit. Rather, the Union advised the Region that it filed the charge solely to seek Regional review of whether the disaffection evidence established a loss of majority status within the pullers unit.

As background to this charge, the Union had previously represented a unit of employees at Kristy Kuts, a related employer with a facility across the street from the Employer, until February of 2021 when Kristy Kuts withdrew recognition based on a disaffection petition. The Union threatened labor action against the Employer over the dispute regarding the Kristy Kuts unit, but this labor action never occurred and the withdrawal of recognition was not found to be unlawful. However, around this time, in Case 04-CA-278397, the Union alleged that the Employer made an unlawful threat concerning the potential labor action over the Kristy Kuts dispute, called the police on a ​     ​ on the Employer's property, and unilaterally assigned unit work from the drivers' bargaining unit to ​     ​ non-unit employees.

The Region has made, but not yet implemented, determinations on those allegations. We agree that the Employer unlawfully threatened employees in March and April of 2021 regarding the potential picket line, in violation of Section 8(a)1 of the Act. We also agree that the Employer did not violate the Act by calling the police on a ​     ​ because the evidence showed that the ​     ​ was not engages in protected activity when the police were summoned. Finally, we agree that the Region should defer to the arbitrator's decision regarding the allegations that the Employer assigned bargaining unit work to ​     ​ non-unit employees, and therefore dismiss the allegations.

The Union had filed grievances in May of 2021 concerning the drivers' bargaining unit that mimic the language of the Section 8(a)(5) allegations in the charge in Case 04-CA-278397. The Union then moved for arbitration in June and an arbitration was held on December 1, 2021. In the arbitration, the Union argued that when the Employer assigned non-unit employees to use straight trucks to do the morning Market run and vendor pickups, which typically were done by non-unit employees using tractor-trailer trucks, it violated the contract because straight trucks had always been utilized by unit members. The Union's position was that the language of the contract referring to the Union's “recognized” work supersedes any practice established in fact. The Employer argued that the contract does not state that the Market run is exclusively unit work and there was never any agreement that straight trucks would only be driven by unit members. The Employer also argued that the vendor pickups have always been shared by unit and non-unit employees. On February 9, 2022, the arbitrator issued a decision denying the Union's grievances. The arbitrator found that the contract does not define the Union's jurisdiction in terms of specific jobs, so the practice and understanding of the parties must be considered. Since the Union's witnesses could not dispute the Employer's claim that there was a practice of supplementing Market runs and vendor pickups with non-unit employees driving straight trucks, the arbitrator did not find the work to be exclusively unit work. In terms of whether a past practice established the Union's exclusive right to the performance of the work in question, the arbitrator was persuaded that the Union's witnesses “candidly testified they had not had constant physical presence when the Market runs were made and therefore could not vouch that management never supplemented those pickups with non-Union help driving straight trucks.” He reached the same conclusion with respect to the vendor pickups. Thus, he concluded the Employer did not violate the contract by assigning non-unit employees to do that work, nor was the evidence sufficient to establish a past practice.

For Section 8(a)(5) allegations [1] , the Board will defer to an arbitration award when the proceedings were fair and regular, all parties agreed to be bound, and the decision of the arbitrator was not clearly repugnant to the Act. Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955). An arbitration award is “clearly repugnant” only if it is “palpably wrong” and “not susceptible to an interpretation consistent with the Act.” Olin Corp., 268 NLRB 573, 574 (1984). Additionally, the arbitrator must have considered the unfair labor practice issue that is before the Board, which is established if “(1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice.” Id. The party opposing deferral bears the burden of proof. Id.

Here, the proceedings appear to have been fair and regular, all parties agreed to be bound, and the contractual dispute was based on the same facts as the allegations in the unfair labor practice charge. While the arbitrator did not specifically apply the Board's current standard of “regularity and frequency” in finding a past practice, see Mike-Sell's Potato Chip Co., 368 NLRB No. 145 (2019), his determination that the evidence did not establish that the Market runs and vendor pickups were exclusively bargaining unit work, and therefore it was not a violation of the contract to continue to assign the work to non-unit employees, is a decision that is not palpably wrong and is susceptible to interpretation under the Act. See e.g., Good Samaritan Hospital, 363 NLRB 1856 (2016) (applying Spielberg/Olin and deferring to arbitrator's decision that the employer did not unlawfully transfer bargaining unit work to nonunit supervisors). Therefore, the arbitrator's decision was not clearly repugnant to the Act and the Region should defer to the decision and dismiss the Section 8(a)(5) allegations in Case 04-CA-278397.

With respect to the submitted issue, we conclude that the Employer's withdrawal of recognition in April of 2022 was lawful in this case under extant Board law. The Employer established that it based its anticipatory withdrawal of recognition on timely, objective evidence that a majority of the unit no longer wanted to be represented by the Union. There was no allegation or evidence of Employer taint, either directly with the disaffection petition or by related unfair labor practices. The Union did not attempt to reestablish majority support through a representation petition within 45 days of the announcement as required by Johnson Controls. We find that the only meritorious allegation in Case 04-CA-278397, the unlawful threats concerning a potential labor action against Kristy Kuts, is not sufficiently related to the charge at issue here to warrant issuing complaint on the withdrawal of recognition thereby providing an opportunity to argue that Johnson Controls should be overruled. ​     ​ The threats were over a year prior to the disaffection petition in this case, and were related to a potential labor action to protest Kristy Kuts withdrawing recognition from a separate bargaining unit, which was not found to be an unlawful withdrawal.

As for the Union's purpose in filing the instant charge as reported to the Region, we note that the Division of Advice has found that an employer has a duty to provide a union with a copy of a disaffection petition upon request to allow the union to verify the employer's claims that it lost majority support and enable it to fully consider whether to file an election petition under Johnson Controls. See Crestwood Geriatric Care Center, 32-CA-284620, Advice closing email dated January 11, 2023 (finding the employer's withdrawal of recognition lawful under Johnson Controls but that the employer unlawfully failed to furnish a copy of the disaffection petition and directing the Region to urge the Board to overrule Johnson Controls). However, there is no evidence that the Union made such a request here and there is no timely charge alleging that the Employer failed to respond to such a request. Instead, it filed the instant charge only seeking verification from the Region that the disaffection evidence submitted by the Employer established a loss of majority status within the pullers unit.

Based on the foregoing, the Employer did not violate the Act under extant law and there are no sufficiently related merit allegations warranting going forward to make this case an appropriate vehicle to urge the Board to overrule Johnson Controls. ​     ​ Therefore, the Region should dismiss the charge, absent withdrawal. This email closes this case in Advice. Please let us know if you have any questions or concerns.