filed: August 26, 1992; As Corrected August 31, 1992.
On petition for review and cross-application for enforcement of a decision and order of the National Labor Relations Board. (Board Case No. 5-CB-6292)
Before: Greenberg, Alito, and Aldisert, Circuit Judges
GREENBERG, Circuit Judge.
This case is before the court on a petition for review and a cross-application for enforcement of a decision and order of the National Labor Relations Board reported at 305 NLRB No. 114 (1991). We will deny the petition for review and will enforce the order.
The case arises from a representational dispute. The employer, Rite Aid Corporation, operates a large chain of retail drug stores. It has several central distribution centers, including one in Shiremanstown, Pennsylvania, to service its stores. The Shiremanstown center has been responsible in a portion of Rite Aid's business area for the shipping, sorting and storing of unsold goods and for the processing of returned goods. Historically, the petitioner, Chauffeurs, Teamsters and Helpers Local 776, affiliated with the International Brotherhood of Teamsters, AFL-CIO, has represented the employees at the Shiremanstown distribution center. The collective bargaining agreement between the union and Rite Aid provides for final and binding arbitration of grievances.
In August 1987, as a result of increasing business, Rite Aid opened a Central Returns Warehouse in Shiremanstown to process returned goods, a function previously allocated to the distribution centers. Rite Aid hired 27 nonunion employees for this warehouse and reassigned distribution center employees who previously handled returned goods to other distribution center duties. These changes led the union to file grievances on the ground that it should represent the warehouse employees. The union was successful, for on July 14, 1988, an arbitrator concluded that Rite Aid violated the union recognition clause of the collective bargaining agreement by failing to apply it to the returns warehouse. The arbitrator's award required Rite Aid to apply the provisions of the collective bargaining agreement governing the Shiremanstown distribution center to the warehouse and to make certain payments and grant specified benefits to the warehouse employees. In addition, the arbitrator ordered that Rite Aid make the union whole for lost dues and initiation fees.
Rite Aid sought to circumvent the arbitration award by filing a unit clarification petition on August 18, 1988, with the National Labor Relations Board, with the object of obtaining a decision excluding the warehouse employees from the distribution center representation unit. Like the union, Rite Aid was successful in the procedure it initiated. The Board's regional director, on February 7, 1989, issued a decision and order excluding the warehouse employees from the distribution center unit on the ground that the facilities were basically different and the warehouse was not an "accretion" to the distribution unit. The regional director observed that this Conclusion was consistent with the Board's reluctance to accrete unrepresented employees to existing units, which would effectively deny the employees an opportunity to express their preferences in a secret ballot election.
The proceedings separately instituted by Rite-Aid and the union moved in tandem, for the union filed a suit on January 5, 1989, in the district court under section 301 of the National Labor Relations Act, 29 U.S.C. § 185, seeking to enforce the arbitration award. This time, however, the union was not successful, for on September 29, 1989, the district court dismissed the case and refused to enforce the award, as the court regarded the case as involving a representational rather than a contractual issue. The court accordingly held that in making his award the arbitrator had gone beyond his limited authority to interpret the collective bargaining agreement. The union appealed, but we affirmed the order of the district court and the Supreme Court denied certiorari. Teamsters Local Union No. 776 v. Rite Aid Corp., 902 F.2d 1562 (3d Cir.) (table), cert. denied, 112 L. Ed. 2d 208, 111 S. Ct. 249 (1990).
The union did not accept the regional director's decision and order of February 7, 1989, excluding the warehouse employees from the distribution center unit. Instead, it filed a request for review which the Board denied by order of April 28, 1989, concluding that the request raised "no substantial issues warranting review." The union nevertheless moved before the Board for reconsideration of the order of April 28, 1989, but this motion was denied as untimely. The union then sought leave to appeal from the Board so that it would consider the union's motion for reconsideration out of time, but the Board denied this motion as well.
What may be regarded as the third line of action in this controversy, and the one leading directly to the case before us, was initiated on May 15, 1989, when Rite Aid filed a charge with the Board against the union. Rite Aid asserted that the union was engaged in unfair labor practices in violation of section 8(b)(1)(A), (2), and (3) of the NLRA, 29 U.S.C. § 158(b)(1)(A), (2) and (3), by "continuing to seek enforcement of the [arbitration] award, despite the fact that the Board has already determined that the [warehouse] employees are excluded" from the bargaining unit. General Counsel of the Board issued a complaint against the union on June 20, 1989, reflecting the allegations Rite-Aid made in its charge.
Subsequently, General Counsel made a motion for summary judgment which the Board granted in a decision and order of December 11, 1991. The Board first explained that there were no facts in dispute requiring resolution at a hearing. It then reviewed the facts with respect to the establishment of the returns warehouse and described the procedural history of the arbitration, district court and Board proceedings. After the Board set forth the contentions of the parties, it indicated "that the underlying question is representational rather than contractual." It then held "that the arbitrator's decision is not controlling because it was superseded by the superior authority of the Board's subsequent unit clarification Decision and Order." See Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S. Ct. 401, 11 L. Ed. 2d 320 (1964). The Board then held that the union, in seeking enforcement of an arbitration award in direct conflict with the unit clarification determination, effectively "sought to apply the collective-bargaining agreement to employees whom the Board has already determined to be outside of the parties' bargaining unit." This was a violation of section 8(b)(3) of the NLRA because the union was insisting on a change in the scope of the bargaining unit. The Board also held that the union's insistence that its entire contract applied to the warehouse employees, including the union security ...