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The Honorable Richard A. Jones
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE UNITED NATURAL FOODS,
INCORPORATED,
Plaintiff, v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 117 & LOCAL 313,
Defendant.
No. 2:19-cv-01736-RAJ PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Oral Argument Requested
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TABLE OF CONTENTS
Page(s)
I. INTRODUCTION ... 1
II. STATEMENT OF UNDISPUTED MATERIAL FACTS ... 2
A. The Parties and the Collective Bargaining Agreements ... 2
B. UNFI’s Consolidation of Pacific Northwest Operations ... 3
C. The Unions’ Grievances and Arbitration Award ... 3
D. UNFI’s Unfair Labor Practice Charges Against the Unions ... 4
III. STANDARD FOR SUMMARY JUDGMENT ... 5
IV. ARGUMENT ... 5
A. The NLRB’s Exclusive Competence to Decide NLRA Issues Warrants Summary Judgment in Favor of UNFI ... 6
B. This Court Should Grant Summary Judgment in UNFI’s Favor and Vacate the Arbitration Award Because It is Unenforceable Under the NLRA. ... 14
1. The Award Interferes With The Centralia Employees’ Self-Determination Rights ... 15
2. The Award Is Contrary to NLRA Principles Regarding “Appropriate” Bargaining Units ... 16
3. The Award Would Cause UNFI to Discriminate On the Basis of Union Affiliation in Violation of the NLRA ... 17
C. The Award Does Not “Draw[] Its Essence” From the Tacoma CBAs, Which Warrants Vacating the Award and Granting Summary Judgment in UNFI’s Favor ... 18
1. The Award Improperly Reinvents and Redefines What Constituted “Terms of this Agreement” and “Terms of this Contract” ... 20
2. The Award Should Be Vacated Because It Improperly Disregarded the “Majority Support” Requirement in Both Disputed Contract Clauses ... 23
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TABLE OF AUTHORITIES
Page(s) Cases
ADT, LLC,
368 NLRB No. 118 (2019) ...17
Akers National Roll Co. v. USW,
2012 WL 850893, No. 10CV1079 (W.D. Pa. Mar. 13, 2012) ...24
Am. Postal Workers Union v. U.S. Postal Serv.,
682 F.2d 1280 (9th Cir. 1982) ...14
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ...5
Boire v. Int’l Bro. of Teamsters,
479 F.2d 778 (5th Cir. 1973) ...16
Boston Gas I,
221 NLRB 628 (1975) ...17
Carpenters’ Local 1478 v. Stevens,
743 F.2d 1271 (9th Cir. 1984) ... passim
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ...5
Citgo Asphalt Refining Co. v. Paperworkers,
385 F.3d 809 (3d Cir. 2004)...24
Desert Palace, Inc. v. Local Joint Executive Bd.,
679 F.2d 789 (9th Cir. 1982) ...19
EHW Constructors, J.V. v. IUOE Local 302,
2014 WL 4269511, No. C14-5270 (W.D. Wa. Aug. 29, 2014) ...14
Garner v. Teamsters Local 776,
346 U.S. 485 (1953) ...8
General Laborers Union Local 242 v. Farrow Concrete Specialties,
2009 WL 1922247, No. C08-0611 (W.D. Wa. July 1, 2009) ...14
Glaziers Local No. 767 v. Custom Auto Glass Distribs.,
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Horizon Air Industries, Inc. v. Airline Professionals Assoc.,
2014 WL 2896001, No. 2:13-cv-681 (W.D. Wa. June 25, 2014) ...22
Hotel Employees, Restaurant Employees Union, Local 2 v. Marriott Corp.,
961 F.2d 1464 (9th Cir. 1992) ...14
Interstate Bakeries Corp.,
357 NLRB 15 (2011), enforced sub nom. NLRB v. Teamsters Local Union No.
523, 488 F. App’x 280 (10th Cir. 2012) ...18
Kroger Co.,
219 NLRB 388 (1975) ...23
Local 1 Amalgamated Lithographers v. Stearns & Beale, Inc.,
812 F.2d 763 (2d Cir. 1987)...14
Local 3-193 International Woodworkers v. Ketchikan Pulp Co.,
611 F.2d 1295 (9th Cir. 1980) ...14
Local 340, New York New Jersey Regional Joint Board (Brooks Brothers),
365 NLRB No. 61, slip op. (2017)...17
Local 7-210, OCAW v. Union Tank Car Co.,
475 F.2d 194 (7th Cir. 1973), cert. denied, 414 U.S. 875 (1973) ...14
Local Union No. 47, IBEW v. NLRB,
927 F.2d 635 (D.C. Cir. 1991) ...10
Martin Marietta Refractories Co.,
270 NLRB 821 (1984) ...17
Melbet Jewelry Co., Inc.,
180 NLRB 107 (1969) ...15
MidMichigan Reg'l Med. Ctr-Clare v. Professional Employees Div.,
183 F.3d 497 (6th Cir. 1999) ...24
MV Transportation,
368 NLRB No. 66 (2019) ...10
NLRB v. Postal Service,
8 F.3d 832 (D.C. Cir. 1993) ...10
NLRB v. Retail Clerks Local 588,
587 F.2d 984 (9th Cir. 1978) ... passim
NLRB v. Sunset House,
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Pacific Motor Trucking Co. v. Automotive Machinists Union,
702 F.2d 176 (9th Cir. 1983) ...24
PCC Structurals, Inc.,
365 NLRB No. 160 (2017) ...6
Phoenix Newspapers, Inc. v. Phoenix Mailers Union Local 752,
989 F.2d 1077 (9th Cir. 1993) ...19
Providence St. Peter Hospital v. United Staff Nurses’ Union Local 141,
2009 WL 426300, No. C08-5639 (W.D. Wash. Feb. 19, 2009) ...24
In re Raley’s,
336 NLRB 374 (2001) ...15
S. California Gas Co. v. Util. Workers Local 132,
265 F.3d 787 (9th Cir. 2001) ...5
San Diego Bldg. Trades Council v. Garmon,
359 U.S. 236 (1959) ... passim
Sheraton-Kauai Corp. v. NLRB,
429 F.2d 1352 (9th Cir. 1970) ...16
Sperry Systems v. NLRB,
492 F.2d 63 (2d Cir. 1974)... passim
Stead Motors v. Automotive Machinists Lodge 1173,
886 F.2d 1200 (9th Cir. 1989) (en banc), cert denied, 495 U.S. 946 (1990) ...20
SuperValu, Inc.,
351 NLRB 948 (2007) ...15
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,
809 F.2d 626 (9th Cir. 1987) ...5
Teamsters Local 776 (Rite Aid Corp.),
305 NLRB 832 (1991), enforced, 973 F.2d 230 (3d Cir. 1992) ...17
Teamsters Local Union
No. 206 (Safeway, Inc.), 368 NLRB No. 15, slip op. (2019) ...17
U.S. West Communications, Inc.,
310 NLRB 854 (1993) ...17
UFCW v. Alpha Beta Co.,
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
United Ass’n v. Valley Engineers,
975 F.2d 611 (9th Cir. 1992) ...14
United Food & Commercial Workers Union, Local 1119 v. United Markets, Inc.,
784 F.2d 1413 (9th Cir. 1986) ...22
USWA v. Enterprise Wheel & Car Corp.,
363 U.S. 593 (1960) ...5, 22, 23, 24
Van Waters & Rogers Inc. v. Teamsters Local 70,
913 F.2d 736 (9th Cir. 1990) ...14
Virginia Mason Hosp. v. Washington State Nurses Ass’n,
511 F.3d 908 (9th Cir. 2007) ...19
Welch Scientific Co. v. NLRB,
340 F.2d 199 (2d Cir. 1965)...11, 12 Statutes
29 U.S.C. §§ 158(a)(3), 158(b)(2) ...8 29 U.S.C. § 159(b) § 9(b) ...6 National Labor Relations Act ... passim
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
I. INTRODUCTION
Teamsters Local 117 and Local 313 (“Union” or “Unions”) and United Natural Foods, Inc. (“UNFI”) are parties to labor contracts applicable to a UNFI facility in Tacoma, WA. After UNFI announced a new facility in Centralia, WA – consolidating operations previously located in Tacoma and Portland, OR – the Unions insisted that UNFI apply Tacoma labor contract terms to Centralia employees who the Unions previously represented in Tacoma. The Unions also obtained an arbitration award (the “Award”) requiring UNFI to apply Tacoma contract terms to Centralia employees who the Unions had previously represented in Tacoma. However, (a) the General Counsel of the National Labor Relations Board (“NLRB” or the “Board”) has
determined that imposing Tacoma contract terms at Centralia and enforcing the Award here
would constitute unlawful Union “representation” of Centralia employees in violation of
Sections 8(b)(1)(A), 8(b)(2) and 8(b)(3) of the National Labor Relations Act (“NLRA”); (b) the Unions and the Award disregard Tacoma contract language that expressly requires the Unions to show they have majority support among employees at any new location; (c) there has been no such showing by a majority of Centralia employees; and (d) there has been no finding that subgroups of Centralia employees, consisting of former represented Tacoma employees, would be “appropriate” bargaining units in Centralia.
For three independent reasons, the Court should enter summary judgment in favor of UNFI and dismiss the Unions’ counterclaim. First, the Unions’ actions and their attempted enforcement of the Award, at a minimum, are “arguably” prohibited by the NLRA, which warrants summary judgment in UNFI’s favor based on the NLRB’s “exclusive competence” to resolve NLRA issues. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959). Second, the Award directly conflicts with the NLRA, and its enforcement would require UNFI to take actions that are unlawful, which renders the Award unenforceable. Third, the Award does violence to the parties’ collective bargaining agreements (“CBAs”), fails to draw its essence from them and exceeds the arbitrator’s authority. For these reasons, UNFI respectfully requests the entry of summary judgment in its favor and dismissal of the Unions’ counterclaim.
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II. STATEMENT OF UNDISPUTED MATERIAL FACTS A. The Parties and the Collective Bargaining Agreements
UNFI is a national wholesale grocery distributor that owns SuperValu, Inc., including distribution centers in Portland, OR and Tacoma, WA (Miscimarra Declaration, Appendix Exhibit 67, at 3–4),1 which are parties to CBAs with Teamster Locals 117 and 313 in Tacoma (“Tacoma CBAs”), and a separate CBA with Teamster Locals 162, 206, and 305 in Portland (App. Exh. 67, at 2, 4). In Tacoma, Local 117 represented a warehouse bargaining unit (the “Warehouse unit”) covered by the “Tacoma Warehouse CBA”; and Local 313 represented a clerks bargaining unit (the “Clerks unit”) covered by the “Tacoma Clerks CBA” and a drivers bargaining unit (the “Drivers unit”) covered by the “Tacoma Drivers CBA” (App. Exhs. 23, 42). In Portland, three bargaining units of employees were represented by Teamster Locals 162, 206 and 305, covered by a separate CBA (App. Exh. 4).
The Tacoma CBAs each contain a clause captioned “Movement of Existing Facility” (“Movement of Facility clause”), which states:
In the event that the Employer moves an existing facility to any location within the jurisdiction of the Joint Council of Teamsters No. 28, as currently defined excluding current facilities under the jurisdiction of and the service area of Teamsters Local Union No. 690, the terms of this contract shall continue to apply with respect to the new facility. In addition, all employees working under the terms of this Agreement at the old facility shall be afforded the opportunity to work at the new facility under the same terms and conditions and without any loss of seniority or other contractual rights or benefits. The designated Union will be required to show a majority representation in accordance with
controlling law. In addition, the parties agree to enter into effects bargaining in
accordance with controlling law regarding the impact on employees of the movement of an existing facility.2
The Tacoma CBAs also contain a clause dealing with any “new wholesale grocery operation” (hereinafter “New Operation clause”), which states:
The Employer signatory to this Agreement hereby agrees that in the event a new
1 This Court’s Scheduling Order (Dkt. # 37) adopted a stipulated record in relation to liability agreed upon by the parties’ Joint Status Report and Discovery Plan (Dkt. # 28). Relevant portions of this stipulated record are set forth as exhibits to the Declaration of Philip A. Miscimarra, filed August 24, 2020, and are cited hereinafter using the format “App. Exh. __” or “App. Exh. __, at __.”
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wholesale grocery operation is established within the territorial jurisdiction of any local union signatory to this Agreement, and if any of the local unions present signed
authorization cards from a majority of the employees in an appropriate bargaining unit,
the affected employer will thereupon recognize the petitioning local union as the
collective bargaining representative of such employees and will promptly meet with the local union to engage in collective bargaining regarding terms and conditions of
employment for a separate labor agreement.3
The Tacoma CBAs also contain a provision, captioned “Limited Powers,” that restricts the authority of any arbitrator as follows:
A Board or Arbitrator shall have no power to add to or subtract from or to disregard,
modify or otherwise alter any terms of this or any other agreement(s) between the Union
and Employer or to negotiate new agreements. Board and/or Arbitrator powers are limited to interpretations of and a decision concerning appropriate application of the
terms of this Agreement or other existing pertinent agreements(s), if any.4
B. UNFI’s Consolidation of Pacific Northwest Operations.
On February 5, 2019, UNFI announced that a new distribution center in Centralia, WA would consolidate operations previously located in Tacoma and Portland (App. Exh. 67, at 4). UNFI and the Unions engaged in bargaining, in which the Unions insisted that UNFI was
required to apply the Tacoma CBAs at the Centralia facility (id.). UNFI in November-December 2019 gave unconditional Centralia employment offers to Tacoma employees, with explicit indications that accepting Centralia employment would not waive any increased wages, benefits or remedies that were later agreed upon or awarded (App. Exhs. 75, 76, & 77). The consolidated Centralia distribution center is located approximately 55 miles from Tacoma; and there are no distinctions in operations or the treatment of employees based on where they previously worked or whether they were previously union-represented (App. Exh. 67, at 4, 6).
C. The Unions’ Grievances and Arbitration Award
The Unions filed grievances challenging UNFI’s failure to apply the Tacoma labor contracts in Centralia (App. Exhs. 67 at 4–5; 21; 37). Although the Unions made no showing they had majority support among any employees at Centralia, Arbitrator Joseph W. Duffy issued an Award requiring UNFI to give all Tacoma employees “the opportunity to work at the
3 App. Exhs. 23, at § 1.01.1 (emphasis added) and 42, at § 1.4 (emphasis added).
4 App. Exh. 23, at § 23.05 (emphasis added). The Tacoma Clerks CBA contains the same text as quoted above but with minor re-wording. App. Exh. 42, at § 15.5.
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Centralia facility under the same [Tacoma] terms and conditions and without any loss of
seniority or other contractual rights or benefits” (App. Exh. 67, at 18) (emphasis added).
Two aspects of the Award are especially relevant. First, the Award states that Tacoma contract terms must be applied in Centralia, even though both contract clauses at issue in the case
expressly require a showing of union majority support among employees at any new location.5
Second, although the CBA expressly stated that the arbitrator had no power to “subtract from” or “disregard” any “terms of this Agreement,” the Award completely overhauls what does, and does not, constitute “terms of the Agreement” and “terms of the contract” (excluding, of all things, all contract clauses involving or providing for “Union Recognition”), creating an unrecognizable patchwork of CBA provisions that the arbitrator requires UNFI to selectively apply in Centralia.6
D. UNFI’s Unfair Labor Practice Charges Against the Unions.
On October 28, 2019, UNFI filed an NLRB charge alleging the Unions’ actions and attempted enforcement of the Award violated NLRA Sections 8(b)(1)(A), 8(b)(2), and 8(b)(3).7 On July 29, 2020, the NLRB issued a Complaint indicating that the Unions have violated NLRA Sections 8(b)(1)(A), 8(b)(2), and 8(b)(3).8 The NLRB Complaint – referring to this action – describes the Unions’ violations as follows:
(e) On about October 28, 2019, UNFI filed a complaint in the District Court for the Western District of Washington seeking to vacate and set aside the Award.
(f) On about December 6, 2019, the Unions filed denials and counterclaims,
including a petition to enforce the Award, in response to the complaint described above
in paragraph 9(e).
(g) The Unions engaged in the conduct described above in paragraph 9(f) even though they did not represent a majority of an appropriate unit at the Centralia facility.
(h) By the conduct described above in paragraphs 9(f) and 9(g), the Unions
attempted to cause UNFI to discriminate against its Centralia employees on the basis of
Union representation.
(i) By the conduct described above in paragraphs 9(f) and 9(g), the Unions have
been attempting to represent arbitrary units at Centralia comprised only of former
5See supra, notes 2-3, and accompanying text. 6See infra, note 67.
7 29 U.S.C. §§ 158(b)(1)(A), 158(b)(2), 158(b)(3). See App. Exhs. 68 (UNFI’s NLRB charge) and 69 (amended charge filed on July 15, 2020).
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Tacoma employees and thereby insisting on modifying the scope of the Tacoma Warehouse Unit, Clerks Unit, and Drivers Unit.9
On January 24, 2020, UNFI filed a Motion to Stay this action pending the NLRB’s resolution of relevant issues (Dkt. #24), which this Court denied (Dkt. #36). After the NLRB Complaint issued, UNFI filed a Motion for Reconsideration (Dkt. #38) that remains pending.10
III. STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate when there is no genuine issue as to any material fact. FRCP Rule 56(c). It is not “a disfavored procedural shortcut” but, rather, is appropriate “to secure the just, speedy and inexpensive determination of [an] action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626 (9th Cir. 1987).
IV. ARGUMENT
This case involves three independent reasons that warrant the entry of summary judgment in favor of UNFI and dismissal of the Unions’ counterclaim seeking to enforce the Award. First, the Unions’ actions and their attempted enforcement of the Award, at a minimum, are “arguably” prohibited by the NLRA which warrants summary judgment in UNFI’s favor based on the NLRB’s “exclusive competence” to resolve NLRA issues. Garmon, 359 U.S. at 245. Second, the Award directly conflicts with the NLRA and its enforcement would require UNFI to take actions that are unlawful which warrants vacating the Award. Carpenters’ Local 1478 v.
Stevens, 743 F.2d 1271, 1275 (9th Cir. 1984). Third, the Award disregards and fundamentally
rewrites the parties’ CBAs, contrary to explicit contractual limits on the arbitrator’s authority, and therefore it fails to “draw[] its essence” from those agreements. USWA v. Enterprise Wheel
& Car Corp., 363 U.S. 593, 598 (1960); S. California Gas Co. v. Util. Workers Local 132, 265
F.3d 787, 792-793 (9th Cir. 2001).
9Id., ¶¶ 9(e)-(i) (emphasis added).
10 UNFI hereby incorporates in this Motion the arguments presented in UNFI’s Motion for
Reconsideration. In the instant Motion, therefore, UNFI respectfully submits, in the alternative, that this Court should stay all proceedings before this Court pending the NLRB’s resolution of relevant issues.
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A. The NLRB’s Exclusive Competence to Decide NLRA Issues Warrants Summary Judgment in Favor of UNFI
“When an activity is arguably subject to § 7 or § 8 of the [NLRA] . . . the federal courts must defer to the exclusive competence of the National Labor Relations Board,” Garmon, 359 U.S. at 245 (emphasis added), and when an “arbitrator's award impinges on the Board’s authority under [NLRA] Section 9,” this divests the Court of jurisdiction. Stevens, 743 F.2d at 1278.
The NLRA has three core principles that are relevant here. One core principle is the concept of “majority support,” which means labor contracts may lawfully be negotiated only by union representatives that have been “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes.”11 The second core principle involves the determination of an “appropriate” bargaining unit, which means any labor contract must relate to a unit deemed “appropriate” for the “purposes” of
collective bargaining (id.), and the statute states the NLRB “shall decide in each case whether . . . the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.”12 The third core principle is the doctrine of “exclusive
representation,” which means union representatives that have “majority” support in an
“appropriate” bargaining unit “shall be the exclusive representatives of all the employees in such unit.”13 All three principles make one thing clear: when evaluating (i) majority support,
(ii) whether any particular employee grouping is “appropriate,” and (iii) the scope of a union’s “exclusive” representation, everything focuses on the “bargaining unit,” and no union’s authority extends to employees outside of the “bargaining unit.” Id.
This proposition is easiest understood by considering an employee who remained in Tacoma, while moving from the “Warehouse” bargaining unit (represented by Local 117) to a position in the “Clerks” bargaining unit (represented by Local 313). If Local 117 and UNFI agreed (in the Warehouse CBA) that the Warehouse contract terms would remain binding on employees who left the “Warehouse” bargaining unit and moved into the “Clerks” bargaining
11 NLRA § 9(a), 29 U.S.C. § 159(a).
12Id. § 9(b), 29 U.S.C. § 159(b). See also PCC Structurals, Inc., 365 NLRB No. 160 (2017). 13Id. § 9(a), 29 U.S.C. § 159(a).
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unit, such an “agreement” would violate the NLRA and be unenforceable, because Local 117 did not have majority support in the “Clerks” bargaining unit. Rather, a different union – Local 313 – satisfied all of the NLRA principles referenced above: (i) Local 313 previously established majority support among “Clerks” employees, (ii) it comprised a separate “appropriate”
bargaining unit, and (iii) NLRA Section 9(a) made Local 313 the “exclusive” representative for
all employees in the Clerks bargaining unit, regardless of whether some “Clerks” employees previously worked in the Local 117 Warehouse unit. Nor would this situation be different if the non-unit “Clerks” were nonunion, because the NLRA gives all employees the right to have “representatives of their own choosing” or to “refrain from any or all of such activities.”14
The same proposition applies here. The Tacoma Unions only had NLRA authority to negotiate contracts covering employees working in their respective Tacoma units. However, the Award finds that the Movement of Facility clause made the Tacoma contract binding on non-unit employees who work 55 miles away in Centralia, with no requirement that the Unions have majority support there. Even if this accurately reflected the parties’ CBAs (which it does not),15 the Award violates each of the core NLRA principles. It contradicts “majority support” by making Tacoma contract terms apply in Centralia without any showing that a majority of
Centralia employees want the Tacoma Unions as their representatives. The Award contradicts an “appropriate bargaining unit” by requiring UNFI to make distinctions among groups of Centralia employees with no determination that the groups are “appropriate.” The Award contradicts “exclusive representation,” which NLRA Section 9(a) limits to the specific bargaining unit represented by each Tacoma Union; instead, the Award makes Tacoma contract terms binding on employees working in Centralia, where the Unions have no colorable basis for claiming
“representative” status. Accordingly, the NLRB General Counsel concluded that the Unions’ attempted enforcement of the Award in this federal court lawsuit violates NLRA Sections
14 NLRA § 7, 29 U.S.C. § 157 (emphasis added).
15 As noted previously, both the Movement of Facility clause (relied upon in the Award) and the New Operation clause (relied upon by UNFI) expressly state that the Unions, at any different location, must prove “majority representation in accordance with controlling law” and to “present signed authorization cards from a majority of the employees in an appropriate bargaining unit.” See note 2-3, supra, and accompanying text.
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8(b)(1)(A), 8(b)(2) and 8(b)(3).16 And requiring compliance with the Award would force UNFI
to take actions that the NLRB General Counsel has concluded would be unlawful.17
The Supreme Court in Garmon emphasized that courts must defer to the NLRB’s “exclusive competence” when conduct is “arguably” prohibited by the NLRA, because “Congress has entrusted administration of the labor policy for the Nation to a centralized administrative agency, armed with its own procedures, and equipped with its specialized
knowledge and cumulative experience.”18 The Court emphasized that, when creating the NLRB, Congress . . . [created] a specific and specially constituted tribunal and prescribed a particular procedure for investigation, complaint and notice, and hearing and decision,
including judicial relief pending a final administrative order. Congress evidently
considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules.19
Without having the benefit of the NLRB Complaint, this Court denied UNFI’s motion to stay the instant action, and observed that “the Unions have made no attempt to represent any employees at the Centralia facility,” the Court suggested that the parties’ dispute involved “contractual rights” and not “representation issues” in part because the Unions were “only” arguing “that a term within [the Tacoma] CBAs provides an explicit extension of contractual rights to covered Tacoma facility employees who move to another location.” Dkt. #36, at 4.
16See the text accompanying supra note 9, and App. Exh. 70, ¶¶ 9(f), 12, 13, 14 (indicating the Unions violated NLRA §§ 8(b)(1)(A), 8(b)(2) and 8(b)(3) in part by filing “denials and counterclaims, including a petition to enforce the Award” in the instant action). The NLRB General Counsel has “final authority, on behalf of the Board, in respect to the investigation of charges and issuance of complaints . . . and in respect of the prosecution of such complaints before the Board.” NLRA Section 3(d), 29 U.S.C. § 153(d). Issuance of an NLRB Complaint “constitutes the exercise of the General Counsel’s final authority” based on a “determination” that allegations in the charge have merit, subject to the NLRB’s final resolution of relevant issues. NLRB Casehandling Manual §10260.
17 The NLRB Complaint indicates in part that the Unions’ attempted enforcement of the Award violates NLRA Section 8(b)(2), which makes it unlawful for a union “to cause or attempt to cause an employer to
discriminate against an employee in violation of [Section 8(a)(3)].” In turn, Section 8(a)(3) prohibits employers from engaging in union-based “discrimination” among employees. See 29 U.S.C. §§ 158(a)(3), 158(b)(2). Therefore, the NLRB General Counsel’s determination that the Unions’ attempted enforcement of the Award violates Section 8(b)(2) necessarily means UNFI would violate NLRA Section 8(a)(3) if it were required to comply with the Award.
See App. Exh. 70, ¶¶ 9(h), 13 (stating that the Unions, by attempting to enforce the Award, have violated NLRA § 8(b)(3) by “attempt[ing] to cause UNFI to discriminate against its Centralia employees on the basis of Union representation” which would be “in violation of § 8(a)(3) . . .”).
18 359 U.S. at 243, 245.
19Garmon, 359 U.S. at 242-243, quoting Garner v. Teamsters Local 776, 346 U.S. 485, 490-91 (1953). See
also United Ass’n v. Valley Engineers, 975 F.2d 611, 613-14 (9th Cir. 1992), quoting Glaziers Local No. 767 v. Custom Auto Glass Distribs., 689 F.2d 1339, 1342 (9th Cir. 1982).
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UNFI recognizes that the above observations were made solely in relation to UNFI’s Motion to Stay, and the Court was not addressing the issue of liability.20 At the present time, however, several factors support a conclusion that the Unions’ actions unlawfully infringe on “representation” rights at the Centralia facility.
Most importantly, the NLRB General Counsel has now determined that the Unions’ actions – including their counterclaim in the instant case – violate the NLRA. Specifically, the NLRB Complaint indicates that the General Counsel has determined that, by forcing UNFI to apply the Tacoma labor contract terms in Centralia, “the Unions have been attempting to
represent arbitrary units at Centralia comprised only of former Tacoma employees,”21 which
renders immaterial that Unions’ disclaimer of any intention to “represent” Centralia employees.22 The NLRB Complaint also indicates that the Unions’ claims are not purely “contractual” but, rather, infringe on the NLRA-protected rights of Centralia employees;23 and that the Unions, by making Tacoma labor contracts binding on some Centralia employees and not others, “attempted to cause UNFI to discriminate against its Centralia employees on the basis of Union
representation,” which (for the Unions) violates NLRA Section 8(b)(2), and which (if the Unions succeed in this case) would cause UNFI to violate NLRA Section 8(a)(3).24
Second, the main type of “representation” provided by every union involves applying previously negotiated contract terms to employees at a particular location. In MV
Transportation, 368 NLRB No. 66 (2019), the NLRB held that applying existing contract
provisions involved the “exercise” of the union’s representative function, which suspends further
20 The parties’ Joint Status Report deferred the issue of liability until after the Court resolved UNFI’s Motion to Stay (Dkt. #28, at 4-5), which this Court recognized in its Scheduling Order (Dkt. # 37, at 2).
21See App. Exh. 70, ¶¶ 9(i), 12, 14 (“the Unions have been attempting to represent arbitrary units at Centralia comprised only of former Tacoma employees” in violation of NLRA §§ 8(b)(1)(A) and 8(b)(3)).
22 Because the Unions have no colorable basis for claiming to “represent” Centralia employees, the Award engages in circular reasoning by attaching significance to the absence of Union demands for “recognition as the exclusive bargaining representatives of any employees at the . . . Centralia facility.” App. Exh. 67, at 18. See also id. (stating that the Unions’ grievance involves a “contract interpretation dispute” which is supposedly a “separate issue” from [t]he fact that a question concerning representation may exist at the new facility in Centralia”).
23See App. Exh. 70, ¶ 12 (“the Unions have been restraining and coercing employees in the exercise of the rights guaranteed in [NLRA] § 7 . . . in violation of § 8(b)(1)(A) of the Act”).
24See id., ¶¶ 9(h), 13 (stating that the Unions, by attempting to enforce the Duffy Award, have violated NLRA § 8(b)(3) by “attempt[ing] to cause UNFI to discriminate against its Centralia employees on the basis of Union representation” which would be “in violation of § 8(a)(3) . . .”). See also explanation in note 17, supra.
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bargaining as to covered subjects, because the NLRA did not contemplate “perpetual bargaining” during a labor contract’s term.25 Similarly, in Stevens, the Ninth Circuit deemed irrelevant a union’s disclaimer of “representation,” where an arbitrator – contrary to an NLRB Regional Director – concluded that a union’s labor contract with one entity, “NSC,” was binding on a related entity, “EOC,” based on a clause in the NSC labor contract making the agreement binding on “any entity or venture” that was “financially associated” with NSC.26 The Ninth Circuit held that “where the findings of the Board and an arbitrator conflict on a particular issue, the Board’s decision must take precedence.”27 Similar to the instant case, the union argued it did “not seek to represent the employees of EOS.”28 The Ninth Circuit held this disclaimer was immaterial, because the arbitration award concluded “that EOS was bound by the labor
agreement,” which required deferring to the NLRB’s “superior authority.”29
Third, decades-old NLRB case law establishes that any contract clause that purports to make one location’s CBA automatically apply to a different location is unenforceable, absent a requirement that the union has majority support among employees at the new location; and if there is no “explicit condition” requiring employee majority support, the NLRB “will impose
such a condition as a matter of law.” Kroger Co., 219 NLRB 388, 389 and fn. 6 (1975). In
Kroger, the NLRB indicated an “additional stores” clause making the labor contract apply at new
locations could be lawfully applied only “upon proof of majority status” in an “appropriate” bargaining unit because a contrary interpretation would “imping[e] on functions reserved solely to the Board” and be “unenforceable” if the relevant bargaining unit “did not coincide with Board policy.” Id. The Ninth Circuit has embraced this same principle, which was presented in
NLRB v. Retail Clerks Local 588, 587 F.2d 984 (9th Cir. 1978), involving a “new stores” clause,
25MV Transportation, 368 NLRB No. 66, slip op. at 5 (2019) (a union “may exercise its right to bargain about a particular subject by negotiating for a provision in a collective bargaining contract that fixes the parties’ rights and forecloses further mandatory bargaining as to that subject”), quoting NLRB v. Postal Service, 8 F.3d 832, 836 (D.C. Cir. 1993); Local Union No. 47, IBEW v. NLRB, 927 F.2d 635, 640 (D.C. Cir. 1991).
26 743 F.2d at 1274. 27 743 F.2d at 1279.
28Id. at 1277 (emphasis in original). 29Id. at 1277-78 (citation omitted).
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where the Ninth Circuit stated that “contract rights cannot exist independent of the union’s right
to represent the unit, [and] the new stores clause cannot bind the new employees despite the
employer’s acquiescence.” Id. at 968 (emphasis added). Moreover, in Sperry Systems v. NLRB,
492 F.2d 63, 68 (2d Cir. 1974), like the instant case, the arbitrator ruled that New York labor contract terms were binding on employees at a new California facility (who were transferred from New York), while expressly “excluding the Union Shop and other representation clauses.”
Id. at 65. The court held it was immaterial that “the Union’s goal was not representation,” and characterized the “the Union’s activities in enforcing the award . . . as a sub rosa attempt to gain the de facto recognition as bargaining agent of the [California] employees. . . .” Id. at 68. The court concluded:
[R]egardless of the Union's motive in seeking enforcement of the arbitration award, it
committed an unfair labor practice because the subject of the wages and working conditions of the [California] employees was not a permissible subject of bargaining in
the New York City unit. . . . Generally, an employer commits the unfair labor practices of
interfering with employees' § 7 rights and supporting a union in violation of § 8(a)(1) and (a)(2) when it imposes on employees of one unit the contract and bargaining agent of
another unit.30
Fourth, imposing Tacoma contract terms at the Centralia facility would force UNFI to differentiate between different groups of Centralia employees with no finding that any of the groupings are “appropriate” bargaining units.31 And expressly requiring UNFI to apply Tacoma labor contract “wages, hours, benefits and working conditions” including “seniority” at the
30Id. at 69 (emphasis added), citing Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352 (9th Cir. 1970); Welch
Scientific Co. v. NLRB, 340 F.2d 199 (2d Cir. 1965). See also Welch Scientific Co., 340 F.2d at 203 (company’s application of CBA covering Chicago plants to employees to employees in new York plant unlawfully “interfere[d] with the fundamental right of the New York employees to choose their own representative”); Van Waters & Rogers Inc. v. Teamsters Local 70, 913 F.2d 736, 742 (9th Cir. 1990) (upholding arbitrator’s award of monetary damages for employer’s breach of agreement to integrate seniority in connection with merger, while indicating that, had the award ordered the employer to actually apply the CBA seniority provisions, it could have created a conflict with NLRA policy allowing only chosen representatives to bargain collectively).
The NLRA contains a single exception – where particular labor contracts may be negotiated and applied when the union’s “majority status . . . has not been established” – which is only lawful when the employer is “engaged primarily in the building and construction industry.” NLRA § 8(f), 29 U.S.C. § 158(f). The construction industry exception created by NLRA § 8(f) has no application to UNFI, which is engaged in the wholesale grocery distribution business. App. Exh. 67, at 3-4.
31See NLRA § 9(a), 29 U.S.C. § 159(a), providing for collective bargaining only by representatives “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes.”
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Centralia facility32 would disadvantage all other Centralia employees who do not have any such contractual rights.33 Nor is there a sharp dichotomy between Union “representation” and Tacoma contract “wages, hours, benefits and working conditions,” because the Tacoma CBAs reveal these concepts are intertwined.34 In fact, the Award itself contains numerous references to a “transitional phase,” a “transition period,” required application of the Tacoma contracts “at least until majority status is determined,” and a “transition that leads to an ultimate agreement,” all of which presume Union representation in Centralia.35
This Court should be guided by the importance of avoiding what the Ninth Circuit in
Stevens called a “serious dilemma.”36 There, the court held it was improper to enforce an
arbitration award applying one entity’s labor contract in a way that would unlawfully “limit the rights” of nonunion employees, because enforcing the award would place the employer in the untenable position of being forced to violate the NLRA:
Should he refuse to apply the terms of the labor agreement to the non-union [employees], he would be liable for damages under an approach that accorded primary to the
arbitrator's decision. On the other hand, should he insist on applying the agreement to those workers in face of the Board’s [contrary] findings . . . , the employer would be liable for having committed an unfair labor practice. 37
As a final matter, if the Unions argue the dispute in this case is purely “contractual,” in reliance on UFCW v. Alpha Beta Co., 736 F.2d 1371 (9th Cir. 1984), their reliance is misplaced.
Alpha Beta addressed a question of arbitrability that arose from a claim that the CBA required
32See App. Exh. 67, at 18.
33 The impact on Centralia employees is most evident in relation to Tacoma seniority, which would benefit a subgroup of Centralia employees who transferred from Tacoma, at the expense of all other Centralia employees in relation to seniority-based actions and preferences, potentially affecting layoffs, hours, shift selection, vacation scheduling, bidding, and transfer rights, among other things.
34 Numerous provisions in the Tacoma Warehouse CBA, for example, provide for Local 117
representatives to have involvement in incentive compensation, seniority, leaves, health and welfare, dental, vision, retirees, welfare trust and pension benefits, discipline, and production standards. App. Exh. 23, §§ 5.04, 5.8, 7.04, 6.09, 11.04, 12.03, 25.01. Nor does the Award address how parties would resolve disputes over whether particular Tacoma contract terms were properly applied in Centralia, and whether or how such a dispute in Centralia could be resolved pursuant to the Tacoma labor contract’s grievance arbitration procedures without any Union
“representation.”
35 App. Exh. 67, at 13-14, 17, 18. 36 743 F.2d at 1280.
37Id. at 1280, citing Sheraton-Kauai Corp., 429 F.2d at 1354 (employer committed unfair labor practice by extending labor agreement to bargaining unit Board identified as distinct); Welch Scientific Co., 340 F.2d at 203 (unfair labor practice for employer to apply agreement covering Chicago plants to employees in New York).
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the employer “to continue to make trust fund contributions on behalf of transferred employees,” and applying the “strong presumption” favoring arbitrability, the court held the dispute was arbitrable because it involved a question regarding the “interpretation” or “application” of the CBA. Id. at 1374-75 (emphasis added). Although the court decision contains dicta suggesting that other contract terms might be applied elsewhere,38 this was not at issue in the case, and the Ninth Circuit explicitly stated that, if the resulting arbitration award “conflicts with federal law, it is, of course, subject to invalidation.” The court also indicated:
“because a National Labor Relations Board ruling would take precedence, . . . a court would refuse to enforce an arbitration award that conflicts with an NLRB decision” (Id. at 1377 n. 9);
applying contract terms at a different location might be unlawful “if doing so would create an irreconcilable conflict with, or adversely affect, the rights of the other employees in the unit to which the transfer is made” or would “adversely affect . . . other employees in the unit to which the transfer is made” (Id. at 1377, 1379); and it was possible that “the fragmenting of employees into separate groups based on past
employment history would have an adverse effect on the bargaining rights of the employees as a whole” (Id. at 1380).
These factors, among others, explain why the NLRB General Counsel in the instant case has determined that the Unions’ attempted enforcement of the Award, making Tacoma labor contract terms binding in Centralia, violates the NLRA.
In Local 3-193 International Woodworkers v. Ketchikan Pulp Co., 611 F.2d 1295,
1296-97 (9th Cir. 1980), where the Ninth Circuit rejected a union claim that the CBA was binding on other facilities, the court stated that “Congress did not intend . . . to vest in the courts initial authority to consider and pass upon questions of representation and determination of appropriate bargaining units.” The court concluded:
In the present case[,] the Union is attempting an end run around Section 9 of the Act and under the guise of contract interpretation wants to avoid self-determination of a
bargaining agent by a substantial number of employees and determination of an
appropriate bargaining unit by the NLRB, which has primary authority in this area. This
cannot be countenanced.39
38 736 F.2d at 1379 (referring to permitting employees “to receive most of the economic benefits they received prior to their transfer in the event that . . . their work locale is changed”) (emphasis in original).
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In the instant case, there is an obvious reason that the Unions do not purport to “represent” Centralia employees: they have no conceivable basis for making such a claim. Instead, they seek to accomplish the same thing by enforcing the Award’s imposition of Tacoma labor contract terms on subgroups of Centralia employees, which the NLRB General Counsel has concluded constitutes unlawfully “attempting to represent arbitrary units at Centralia.”40
The NLRB has “superior expertise” to resolve NLRA issues,41 and the Ninth Circuit itself recognizes that “contract rights cannot exist independent of the unions’ right to represent the unit.”42 Accordingly, the Court should enter summary judgment in UNFI’s favor based on the NLRB’s “exclusive competence” to resolve NLRA issues. Garmon, 359 U.S. at 245.
B. This Court Should Grant Summary Judgment in UNFI’s Favor and Vacate the Arbitration Award Because It is Unenforceable Under the NLRA. The Ninth Circuit has held that “[t]he public policy set forth in the NLRA represents ‘well defined and dominant public policy.’”43 Accordingly, “an arbitrator’s decision forfeits . . . deference if it violates law or an explicit, well-defined and dominant public policy.” Stevens, 743 F.2d at 1275.44 As noted above, the Unions’ attempted enforcement of the Award in this case would violate the NLRA in three main ways.
1. The Award Interferes with the Centralia Employees’ Self-Determination Rights
As noted above, the NLRA permits collective bargaining only by union representatives that have been “designated or selected for the purposes of collective bargaining by the majority
40 App. Exh. 70, ¶¶ 9(i), 12, 14 (emphasis added).
41Hotel Employees, Restaurant Employees Union, Local 2 v. Marriott Corp., 961 F.2d 1464, 1468 (9th Cir. 1992); Valley Engineers, 975 F.2d at 613; Ketchikan, 611 F.2d 1295, 1298 (9th Cir. 1980).
42NLRB v. Retail Clerks Local 588, 587 F.2d 984, 986 (9th Cir. 1978), citing Local 7-210, OCAW v. Union
Tank Car Co., 475 F.2d 194 (7th Cir. 1973), cert. denied, 414 U.S. 875 (1973).
43Van Waters & Rogers Inc., 913 F.2d at 742, quoting Local 1 Amalgamated Lithographers v. Stearns &
Beale, Inc., 812 F.2d 763, 769 (2d Cir. 1987); see also Ketchikan, 611 F.2d at 1299 (“there is a very, very strong policy of self-determination using the procedures vested in the NLRB under our National Labor Relations Act” to resolve union representation issues).
44See also EHW Constructors, J.V. v. IUOE Local 302, 2014 WL 4269511, No. C14-5270, at *9 (W.D. Wa. Aug. 29, 2014), quoting Am. Postal Workers Union v. U.S. Postal Serv., 682 F.2d 1280, 1286 (9th Cir. 1982) (“Just as ‘courts will not enforce contracts requiring the performance of an illegal act,’ they ‘cannot enforce an arbitrator’s award if it requires the performance of an illegal act.’”); General Laborers Union Local 242 v. Farrow Concrete Specialties, 2009 WL 1922247, No. C08-0611, at *4 n.1 (W.D. Wa. July 1, 2009) (“[A]n agreement between an employer and a union that interferes with the right of employees to choose their own bargaining representative is illegal and unenforceable.”), citing Marriott, 961 F.2d at 1468; Ketchikan, 611 F.2d at 1299-1301.
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of the employees in a unit appropriate for such purposes.”45 Based on the importance of
“majority support,” the NLRB and the courts have developed a decades-old body of black-letter law regarding contract provisions that purport to make one location’s labor contract applicable to new or different locations. In Kroger Co., 219 NLRB at 389 and n.6, the Board held that
“additional stores” clauses, for example, which made the labor contract applicable at new or different locations without any showing of union majority support, were unenforceable under the NLRA, and if the contract clauses “do not contain an explicit condition that unions must
represent a majority of the employees in a new store,” the NLRB “will impose such a condition as a matter of law,” because this would otherwise “imping[e] on functions reserved solely to the Board,” including “the Board’s ultimate right to establish appropriate units.” Id.46
Nor is the Award saved by the arbitrator’s effort to differentiate between Tacoma contract terms addressing wages, hours, benefits, working conditions and seniority (which the Award imposes on Centralia) and Tacoma contract terms dealing with “representation” (which ostensibly would not apply at Centralia). This same attempted delineation was made in Sperry
Systems v. NLRB, 492 F.2d at 65, where the arbitration award imposed New York labor contract
terms at a new facility in California – excluding contract clauses involving “representation” and “Union Shop” (id.) – and the court still held that the union’s actions were “an unfair labor practice” and the union’s “activities in enforcing the award . . . [were] a sub rosa attempt to gain
45 NLRA § 9(a), 29 U.S.C. § 159(a) (emphasis added).
46See also NLRB v. Retail Clerks Local 588, 587 F.2d 984, 968 (9th Cir. 1978) (stating, in reference to “new stores” clause, that “contract rights cannot exist independent of the union’s right to represent the unit, [and] the new stores clause cannot bind the new employees despite the employer’s acquiescence”); Local 340, New York New Jersey Regional Joint Board (Brooks Brothers), 365 NLRB No. 61, slip op. at 1 (2017) (“[T]he presence of an after-acquired stores clause in a collective-bargaining agreement does not automatically result in the inclusion of
employees at an after-acquired store. . . . [P]roof of majority status by the union is required.”); Melbet Jewelry Co., Inc., 180 NLRB 107, 110 (1969) (the Board “will not … compel a group of employees, who may constitute a separate appropriate unit, to be included in an overall unit without allowing the employees the opportunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the Union to represent them”); SuperValu, Inc., 351 NLRB 948, 949 n.6 (2007) (same); Raley’s, 336 NLRB 374, 378 (2001) (same).
The instant case goes a significant step further than “additional stores” clauses at issue in Kroger and similar cases. Not only does the Award impose Tacoma labor contract terms on employees in Centralia, without any showing of Union majority support among Centralia employees, the Award in this respect disregards two provisions in the Tacoma contracts (the Movement of Facility clause and the New Operations clause) that expressly require a showing of Union majority support at new or moved facilities. See notes 2-3, supra, and accompanying text.
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. . . de facto recognition as bargaining agent [in California].” Id. at 68 (citations omitted). The NLRB General Counsel has concluded that, by attempting to enforce the Award’s imposition of Tacoma contract terms at the Centralia facility, the Unions “have been attempting
to represent arbitrary units at Centralia comprised only of former Tacoma employees”47 in
violation of NLRA Sections 8(b)(1)(A) and 8(b)(3). There is ample support for this
determination, which is also consistent with Ninth Circuit law. See NLRB v. Retail Clerks Local 588, 587 F.2d 984, 986 (9th Cir. 1978), citing Boire v. Int’l Bro. of Teamsters, 479 F.2d 778 (5th Cir. 1973); Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352 (9th Cir. 1970); NLRB v. Sunset
House, 415 F.2d 545, 547, 548 (9th Cir. 1969). Because the Award infringes on the protected
rights of Centralia rights to make their own decisions about union representation, this warrants vacating the Award and entering summary judgment in UNFI’s favor.
2. The Award Is Contrary to NLRA Principles Regarding “Appropriate” Bargaining Units
The Award does not contain a single sentence of analysis addressing what group(s) of employees in Centralia might constitute an “appropriate” bargaining unit. However, the Award effectively expands the Tacoma bargaining units to encompass employees in Centralia, and/or it requires UNFI to create at least four de facto Centralia bargaining units, consisting of (i) former Tacoma employees covered by the Warehouse CBA, (ii) former Tacoma employees covered by the Clerks CBA, (iii) former Tacoma employees covered by the Drivers CBA, and (iv) other Centralia employees who were new to UNFI or who worked previously in Portland (where three other Teamsters Local Unions had represented employees) or elsewhere. In contrast with these de facto bargaining units, the record reveals that the only appropriate bargaining unit at Centralia is a single wall-to-wall warehouse unit.48 This is reinforced by NLRB cases indicating that,
47See App. Exh. 70, ¶¶ 9(i), 12, 14 (“the Unions have been attempting to represent arbitrary units at Centralia comprised only of former Tacoma employees” in violation of NLRA §§ 8(b)(1)(A) and 8(b)(3)).
48 The parties stipulated in arbitration that Centralia involved a “single classification of warehouse worker,” all Centralia employees have the “same managers” and “same supervisors,” and perform “the same warehouse work,” regardless of whether they were new employees or “previously worked in Portland or Tacoma,” and Centralia would not otherwise be “divided in any fashion based on whether a customer or employee came from Tacoma, Portland, or was new to the Centralia operation.” App. Exh. 67, at 5-6.
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where two or more bargaining units previously represented by different unions are merged, the Board will find that a single consolidated unit is appropriate.49
As noted previously, the concept of an “appropriate” unit is central in the NLRA,50 and it is unlawful for a party to insist on modifying or expanding the scope of an existing unit.51
Accordingly, the NLRB General Counsel determined that the Unions’ attempted enforcement of the Award violated NLRA Sections 8(b)(1)(A) and 8(b)(3) by unlawfully “attempting to
represent arbitrary units at Centralia comprised only of former Tacoma employees and thereby insisting on modifying the scope of the Tacoma Warehouse Unit, Clerks Unit, and Drivers Unit.”52 Because the Award imposes Tacoma labor contract terms on subgroups of Centralia employees with no determination of whether or what particular groups constitute an
“appropriate” bargaining unit, and contrary to evidence establishing that a single wall-to-wall unit exists, this separately warrants vacating the Award and summary judgment in UNFI’s favor.
3. The Award Would Cause UNFI to Discriminate On the Basis of Union Affiliation in Violation of the NLRA
The Unions’ attempted enforcement of the Award would also require UNFI, as noted above, to differentiate between different groups of Centralia employees – based on the “wages, hours, benefits and working conditions” and “seniority”53 in the Tacoma Warehouse CBA, Clerks CBA and Drivers CBA – which would disadvantage all other Centralia employees who do not have any such contractual rights, especially in relation to seniority (since former Tacoma employees would be ahead of non-Tacoma employees in relation to all seniority-based
preferences and benefits, potentially including layoffs, shift selection, vacation scheduling, potential bidding or transfer rights, among other things). The Award would also require UNFI to pay different wages to Centralia employees, based on whether or not they were previously
49 See Martin Marietta Refractories Co., 270 NLRB 821, 822 (1984). See also U.S. West Communications,
Inc., 310 NLRB 854, 855 (1993); Boston Gas I, 221 NLRB 628, 629 (1975); Teamsters Local Union No. 206 (Safeway, Inc.), 368 NLRB No. 15, slip op. at 1 fn. 3 (2019); ADT, LLC, 368 NLRB No. 118 (2019).
50See note 12, supra, and accompanying text.
51See, e.g., Brooks Brothers, 365 NLRB No. 61, slip op. at 4 (2017); Teamsters Local 776 (Rite Aid Corp.), 305 NLRB 832, 833-34 (1991), enforced, 973 F.2d 230 (3d Cir. 1992).
52 App. Exh. 70, ¶ 9(i). 53See App. Exh. 67, at 18.
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represented by the Tacoma Unions, and Centralia employees would be subject to other
differences in working conditions, including potentially dissimilar disciplinary standards, hours, benefits, incentive programs and work rules. This type of discrimination, which favors or disfavors employees based on union-related considerations, is prohibited by the Act. See, e.g.,
Interstate Bakeries Corp., 357 NLRB 15, 17 (2011), enforced sub nom. NLRB v. Teamsters
Local Union No. 523, 488 F. App’x 280 (10th Cir. 2012).54
Accordingly, the NLRB General Counsel has determined that the Unions’ efforts to enforce the Award violate NLRA Section 8(b)(2) by “attempt[ing] to cause UNFI to discriminate against its Centralia employees on the basis of Union representation,” and – if UNFI were
ordered to comply with the Award – this would require UNFI to take actions that would violate NLRA Section 8(a)(3).55 For these reasons as well, the Award should be vacated and UNFI should be granted summary judgment in its favor.
C. The Award Does Not “Draw[] Its Essence” From the Tacoma CBAs, Which Warrants Vacating the Award and Granting Summary Judgment in UNFI’s Favor
In USWA v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960), which is one of the
celebrated Steelworkers Trilogy cases, the Supreme Court described the deference afforded to arbitration awards, and stated:
When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. . . . Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of
industrial justice. He may of course look for guidance from many sources, yet his award
is legitimate only so long as it draws its essence from the collective bargaining
agreement. When the arbitrator's words manifest an infidelity to this obligation, courts
have no choice but to refuse enforcement of the award.56
An arbitrator’s award may be set aside if the arbitrator’s “interpretation of any of the relevant
54 The only way that UNFI could avoid such discriminatory treatment would be to impose Tacoma contract terms on all Centralia employees, including individuals who the Unions have never represented and who may oppose such representation. However, this “cure” would be even more plainly violative of the NLRA, because NLRA Section 7 gives employees the protected right to “refrain from” engaging in collective bargaining. NLRA § 7, 29 U.S.C. § 157.
55See explanation in note 17, supra. 56Id. at 597 (emphasis added).
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CBA provisions was not on its face a plausible interpretation of the contract.”57 An arbitrator’s remedy may also be limited by the CBA.58
In the instant case, the Award is not merely palpably wrong in its interpretation of the parties’ Tacoma labor contracts. In two respects, it reflects an abdication of the arbitrator’s fundamental duty, imposed on the arbitrator by the parties’ agreements, not to “subtract from or to disregard, modify or otherwise alter any terms of [the] . . . agreement.”59
First, the explicit contractual limitation on the arbitrator’s authority states, two times, that arbitrator shall have no power to subtract from or to disregard, modify or otherwise alter any
“terms of this . . . agreement,” which is repeated in a further admonition that the “Arbitrator
powers” are limited to interpreting and deciding the appropriate application of the “terms of this
Agreement.” Incredibly, the arbitrator did not merely violate this express limitation on his
authority, he did so by redefining this very phrase. Thus, when interpreting the Movement of Facility clause, which states the “terms of this contract shall continue to apply with respect to the new facility,” the arbitrator reinvents the parties’ agreement by finding that “terms of the
contract” in the Movement of Facility clause “can reasonably be interpreted to mean wages, hours, benefits and working conditions contained in the Agreement” while discarding everything
else – specifically, all CBA provisions involving or alluding to Union “representation.”
Second, the Award “subtracts from” and “disregards” the Tacoma contracts’ explicit Union “majority support” requirements, stated in both of the contract clauses at issue here.
In both respects, the Award exceeds the arbitrator’s authority and it fails to draw its “essence” from the parties’ agreements, which independently warrants vacating and setting aside the Award, and granting summary judgment in UNFI’s favor.
57Virginia Mason Hosp. v. Washington State Nurses Ass’n, 511 F.3d 908, 914 (9th Cir. 2007), citing
Phoenix Newspapers, Inc. v. Phoenix Mailers Union Local 752, 989 F.2d 1077, 1080 (9th Cir. 1993).
58Phoenix Newspapers, 989 F.2d at 1081-82, citing Desert Palace, Inc. v. Local Joint Executive Bd., 679 F.2d 789, 792-93 (9th Cir. 1982) (other citation omitted). See also Stead Motors v. Automotive Machinists Lodge 1173, 886 F.2d 1200, 1204 (9th Cir. 1989) (en banc), cert denied, 495 U.S. 946 (1990).
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1. The Award Improperly Reinvents and Redefines What Constituted “Terms of this Agreement” and “Terms of this Contract”
The Tacoma CBAs contain an unequivocal limit on the arbitrator’s authority, stating the “Arbitrator shall have no power to add to or subtract from or to disregard, modify or otherwise
alter any terms of this . . . agreement. . . . Arbitrator powers are limited to interpretations of and
a decision concerning appropriate application of the terms of this Agreement.”60
There can be little doubt what UNFI and the Unions regarded as the “terms of this Agreement.” The “terms of this Agreement” obviously means all of the Agreement’s terms. This is reflected in numerous contract provisions (using the Warehouse CBA as an example) showing the parties’ great lengths to avoid any misunderstanding about what each CBA contains:
Warehouse CBA Section 17.02 indicates that the “terms” and “conditions” in the “Labor Agreement” may be “modified” only by “mutual agreement between the
Union and the Company,” and in that case, the CBA requires “that a majority vote of
the affected members has been taken.”61
The seriousness with which the parties viewed any changes to any “Article” or “Section” is reflected in Warehouse CBA Section 24.02 (captioned “Negotiations”) which states that, if “any Article or Section is held invalid or enforcement of or
compliance with which has been restrained,” there will be “immediate collective
bargaining negotiations . . . for the purpose of arriving at a mutually satisfactory replacement,” and if an agreement is not reached within 60 days, “either party shall be permitted all legal or economic recourse in support of its demands notwithstanding any provision in this Agreement to the contrary.”62
The negotiators knew how to indicate when certain items were not to be deemed part of the “Agreement,” as reflected in Warehouse CBA Article 29, which states: “The Article and paragraph/Section headings used in this Agreement were inserted for convenience only and shall have no bearing on the construction or meaning of this
Agreement.”63
Warehouse Agreement Article 30 shows the parties were equally careful to specify that the three listed “Letters of Understanding/Memorandums of Agreement . . . are
hereby made part of this Agreement and do not require individual Employer-Union
signatures.”64
The Award’s own quotation of excerpts from the “Agreement” starts with “Article 1 - Recognition and Bargaining Unit” including “Union Recognition.” and “Employer
60Id. (emphasis added).
61 App. Exh. 23, § 17.02 (emphasis added). 62 App. Exh. 23, § 24.02 (emphasis added). 63 App. Exh. 23, Art. 29 (emphasis added). 64 App. Exh. 23, Art. 30 (emphasis added).
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Recognition.”65 However, when determining the parties’ obligations under the Movement of Facility clause, the Award engaged in a wholesale revision of what constituted the “terms of this contract” by (i) excluding all CBA provisions involving or alluding to Union “representation”, and (ii) including “wages, hours, benefits and working conditions” and “seniority.”66 As to this issue, there is no substitute for quoting the Award itself:
The Employer contends that no arbitration provision and no union security clause would exist for the transferred employees without a contract. The terms of the contract
referenced in the first two sentences of Section 1.01.2, however, can reasonably be interpreted to mean the wages, hours, benefits and working conditions contained in the
Agreement.
* * * Findings of Fact
* * *
3. The Agreement contains an express promise in Section 1.01.2 to apply the terms of the
contract and afford all employees working under the terms of the Agreement at the
Tacoma facility the opportunity to work at the Centralia facility under the same terms and conditions and without any loss of seniority or other contractual rights or benefits. 4. The Employer violated Section 1.01.2 of the Agreement when it refused to apply the
terms of the contract and afford all employees working under the terms of the Agreement
at the Tacoma facility the opportunity to work at the Centralia facility under the same terms and conditions and without any loss of seniority or other contractual rights or benefits pending resolution of the question concerning representation at Centralia.67 The above passages make three things clear. First, the arbitrator made no principled distinction between the phrase “terms of the Agreement” and the phrase “terms of the contract.” These phrases are used interchangeably.
Second, the arbitrator’s obvious objective was to selectively exclude references to Union “representation” – from the phrase “terms of this contract” – thereby permitting the arbitrator to adopt the Unions’ narrative that (i) they disclaimed intending to “represent” Centralia employees (which obviously would require the Unions to establish majority support), while (ii) the Unions insisted the CBA required UNFI to apply all economic Tacoma contract “terms” at Centralia (at least as to individuals were previously represented by the Unions in Tacoma). However, the
65 App. Exh. 67, at 6-7. 66Id. at 18.
