Triple A Machine Shop, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Triple A Machine Shop, Inc. and International Broth- erhood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers and Helpers of America, Local No. 6, AFL-CIO and Michael Jones and Nathaniel Richards. Cases 20-CA-13718 and 20-CA-13733- September 21, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on March 10, 1978, by the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers of America, Local No. 6, AFL-CIO, and upon a charge filed on March 17, 1978, by Michael Jones and Na- thaniel Richards, Individuals, the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for Region 20, issued a consolidated complaint on November 29, 1978, alleging that Triple A Machine Shop, Inc., herein called Respondent, violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by discriminatorily discharging Michael Jones, Daniel Nelson, and Nathaniel Richards. Cop- ies of the charge, consolidated complaint, and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. On December 7, 1978, Respondent filed its answer, admitting in part and denying in part the allegations of the complaint, and submitting separate and affir- mative defenses, asserting, inter alia, that the com- plaint fails to state a claim upon which relief may be granted and that there are no factual issues in dis- pute. On February 8, 1979, Respondent filed directly with the Board a Motion for Summary Judgment and a memorandum of points and authorities in support thereof, with appendixes attached, on the ground that the allegations in the complaint have already been determined in an arbitration proceeding. Respondent, therefore, requests that summary judgment be en- tered in its favor.' On February 9, 1979, Charging Party International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers of America, Local No. 6, AFL-CIO, filed a response to Respondent's Motion for Summary Judgment also urging that the Board defer to the arbitration deci- sion. On February 14, 1979, the Board issued an order transferring the proceeding to itself and a Notice To I Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the panies. Show Cause why the motion should not be granted. On February 26, 1979, both the General Counsel and counsel for Charging Parties Jones and Richards filed oppositions to the motion, and on March 8, 1979, Respondent replied thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment On March 10, 1978, Michael Jones and Nathaniel Richards each received a letter from Respondent which stated that they were being discharged for "at- tempting and threatening to inflict death and physical injury upon a fellow employee of Triple 'A' Machine Shop as well as for attempting and threatening to in- flict damage on a company vehicle." Also on March 10, 1978, Daniel Nelson received a letter from Re- spondent which stated that he was being discharged for "attempting and threatening to inflict death and physical injury upon a fellow employee." All of the alleged incidents took place in the context of a strike and picketing activity at Respondent's premises and Jones, Richards, and Nelson were striking employees of Respondent. Pursuant to the contract grievance and arbitration procedures, grievances were filed over all three dis- charges. Unfair labor practice charges were also filed with the Board alleging that the discharges violated Section 8(a)(1) and (3) of the Act. An arbitration hearing was held on June 15, 1978, and thereafter, on August 16 in the Nelson case, and on August 17 in the Jones and Richards case, the arbitrator rendered his awards. In brief, the arbitrator found that: (1) Jones and Richards were discharged in accordance with the letters sent them by Respondent; (2) Jones, Richards, and Nelson were not entitled to compensa- tion for time lost; (3) Jones and Richards should be hired as "new hires" and Nelson's discharge reduced to a suspension; and (4) the three employees should be subject to dismissal if they engaged in on-the-job conversations about the events that gave rise to the arbitration proceeding. Thereafter, by letters to the parties dated October 19 and November 3, the arbitrator deleted from his awards the restriction concerning on-the-job conver- sations. On November 29, 1978, the General Counsel issued the instant consolidated complaint. On Decem- ber 8, 1978, the arbitrator wrote to the Board's Re- gional Office in San Francisco stating, inter alia, that the penalty imposed by the Employer was too severe and that the "notification of discharge in no way was 245 NLRB No. 24 136 TRIPLE A MACHINE SHOP. INC. based on any alleged Union activity by any of the grievants; to the contrary, the record does not indi- cate that any of these persons engaged in any Union activity that the other approximately 1,200 employees of the facility engaged in [sic]." The arbitrator also observed that "[a]rbitration is conducted under a very different procedure" from Board procedure and that an arbitrator may be required "to render an equitable judgment." And the arbitrator concluded by solicit- ing from the Regional Office "any suggestions con- cerning modification in the language of my Awards In its motion, Respondent submits that the arbitra- tor's awards herein meet the standard for deferral as set forth in Spielberg Manufacturing Company, 112 NLRB 1080 (1955). Respondent also urges that the Board consider the arbitrator's December 8 letter as a "clarification" of the awards (assuming any clarifica- tion is necessary), which removes any "ambiguity" therefrom and establishes that the arbitrator passed on the statutory issues and decided such issues ad- versely to each Charging Party. In their respective oppositions to the motion, the General Counsel and counsel for the Charging Parties urge that: (1) a reading of the awards reveals the arbi- trator's failure to resolve credibility or to make cru- cial findings of fact; (2) the Board should not consider the December 8 "clarification" of the awards since such clarification is inconsistent with the awards and amounts to a "last ditch" attempt to secure deferral to awards in which the statutory issue was neither presented nor decided; and (3) the awards, in any event, are repugnant to the Act. After careful consideration of the motion and the documents submitted in support thereof, as well as the briefs filed by the parties, we have decided that deferral to the arbitrator's awards is inappropriate in this case. Hence, we shall deny the instant motion. In so doing, we note at the outset that it appears that the arbitrator did not consider that the statutory issue was before him or that it was of any concern to him in making his awards. Thus, in both of his awards, the arbitrator characterizes the issue as whether "just cause" exists under the contract for the discharges. Moreover, during an exchange with Re- spondent's counsel at the arbitration hearing, the ar- bitrator remarked that he was "not involved" with matters concerning the then pending unfair labor practice charges.2 Examination of the awards also reveals that the arbitrator failed to make necessary credibility or fac- tual findings. In lieu of such findings, it appears that 2 See, generally. Ad A r, Incorporated. 238 NLRB 1124 (1978); Mar Factor d Co., 239 NLRB 804 (1978). the arbitrator decided to issue "compromise" awards. Thus, for example, in neither award does the arbitra- tor specifically determine whether the events that al- legedly prompted Respondent to discharge the Charging Parties in fact took place.3 Indeed, at one point in the Nelson award the arbitrator observes that "the Arbitrator may put this case in his files under the caption 'Swiss Cheese.' because it has so many holes in it." In the Jones and Richards award the arbitrator repeatedly refers to "an alleged incident." In his awards the arbitrator also complains about the diffi- culty of making "an appropriate evaluation based on the testimony at hand." And, with a single exception, 4 the arbitrator declined to make any definitive credi- bility resolutions because, in his view, none of the witnesses on either side had "clean hands." Nor can we accord any weight to the arbitrator's December 8 "clarification" of his awards. Thus, as noted previously, the "clarification" was not prepared until after the instant complaint issued and it appears to have as its sole purpose the securing of Board de- ferral to the awards in question. Given these circum- stances, particularly the timing of the purported "clarification," we are constrained to agree with the General Counsel that there is serious doubt whether the December 8 letter reflects the arbitrator's fair and impartial findings or merely his effort to avoid further proceedings.5 As for the original awards, we have noted previ- ously that the arbitrator tailed to indicate that he viewed the statutory issues as properly before him and that, in any event, he failed to make definitive findings of fact or resolutions of credibility. Accord- ingly, the arbitrator failed to resolve the statutory is- sues raised by the instant complaint; i.e., whether the Charging Parties engaged in misconduct and if they 3 Nelson was allegedly discharged for swinging a baseball bat at an em- ployee crossing a picket line at Respondent's premises. Jones and Richards were allegedly terminated for threatening a company supervisor with wooden clubs dunng the strike. The arbitrator generally credited the testimony of Respondent's man- ager. Engel, noting, however, that Engel had no direct knowledge. but testi- fied only as to what was told to him by others. See also Douglas Aircraft Company Component of McDonnell Douglas Corporation, 234 NLRB 578 (1978), where the Board, in declining to give weight to an arbitrator's attempted clarification of a prior award, com- mented that it would not "sanction and defer to such a prejudicial proce- dure." Indeed. assuming, arguendo. that we would consider the December 8 let- ter. that document affords little support for Respondent's motion. Thus, al- though the arbitrator's language is at best garbled. apparently he meant to say that his conclusion that the discharges were not discnminatorily moti- vated was based on the fact that the grievants did not engage in union or other protected activity not engaged in by other employees who were on strike and who were not discharged. Not only would such an analysis be wholly inconsistent with settled Board law. Brown & onnallv Inc. 237 NLRB 271 (1978). and Self Cycle & Marine Dislributor Co.. Inc., 237 NLRB 75 (1978). but it begs the question whether any misconduct was committed and whether misconduct, if it occurred, was sufficiently serious to warrant termination in the context of otherwise protected stnke and picket line ac- tivlty. 137 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did whether such misconduct, when considered in the context of their strike and related protected concerted activity, was sufficiently serious to warrant discharge.6 Inasmuch as the arbitrator failed to pass on the statu- tory issues and, in effect, rendered "compromise" awards, we shall deny the instant motion and remand this matter to the Regional Director for appropriate action.7 ORDER It is hereby ordered that Respondent's Motion for Summary Judgment be, and it hereby is, denied. IT IS FURTHER ORDERED that a hearing be held be- fore an administrative law judge to be designated by the Chief Administrative Law Judge for the purpose of receiving evidence on the issues raised by the alle- gations of the complaint. IT IS FURTHER ORDERED that the above-entitled proceeding be, and it hereby is, remanded to the Re- gional Director for Region 20 for the purpose of ar- ranging such hearing, and that the said Regional Di- rector be, and he hereby is, authorized to issue such notice thereof. IT IS FURTHER ORDERED that, upon the conclusion of the hearing, the administrative law judge shall pre- pare and serve on the parties a decision containing findings of fact, conclusions of law, and recommenda- tions based upon the evidence received and that, fol- lowing service of such decision on the parties, the pro- visions of Section 102.46 of the Board Rules and Regulations, Series 8, as amended, shall be appli- cable. MEMBER PENELLO, dissenting: I would defer to the arbitration awards, grant the Motion for Summary judgment, and dismiss the com- plaint in its entirety. In my opinion, the awards as clarified fully meet the Spielberg criteria for deferral. The majority decline to defer because in their view the clarifications cannot be given any weight, the ar- bitrator did not consider the statutory issues, the arbi- trator failed to make necessary credibility and factual findings, and the awards are "compromise" awards. I It is well settled that in the context of a strike not every impropriety committed by an employee will deprive the employee of the protective man- tle of the Act. M. P. Industries, Inc., er al., 227 NLRB 1709 (1977); Coronet Casuals, Inc., 207 NLRB 304 (1973). The impropriety has to be "so violent or of such serious character as to render the employee unfit for future ser- vice." N. LR.B. v. Illinois Tool Works, 153 F.2d 811, 815-816 (7th Cir. 1946). See also The Firestone Tire and Rubber Company, 187 NLRB 54, 59 (1970); Terry Coach Industries, Inc., 166 NLRB 560 (1967). enfd. 411 F.2d 612 (9th Cir. 1969). I The Board has indicated that it will not defer to a "compromise" award where the relief granted is reinstatement without backpay. Greif Bros. Corpo- ration, 238 NLRB 240 (1978): Cessna Aircraft Co., 220 NLRB 873 (1975). See also Gould Inc., Switchgear Division, 238 NLRB 618 (1978); Alfred M Lewis, Inc., 229 NLRB 757 (1977). In my view, the majority misread the arbitration awards and misapply the Spielberg criteria. The majority impute bad faith to the arbitrator and suggest that the clarifications were merely the arbitra- tor's effort to avoid further proceedings. However, the only further proceedings the arbitrator was involved with were the clarifications. The clarifications not only further explained the rationale for the awards, but also significantly modified the awards to delete improper restrictions the arbitrator had placed on the grievants.8 So far as I am concerned, the modifica- tions reflect the fair and impartial judgment of the arbitrator and should be considered as part of the original awards. Clarification of arbitration awards is a useful procedure to rectify mistakes and should not be readily disregarded. See my dissent in Douglas Air- craft Company, supra. Arbitrators of course cannot find unfair labor prac- tices: only the Board has the authority to do so. How- ever, arbitrators can, as herein, find facts sufficient to resolve the unfair labor practice issues. Although the arbitrator did not specifically rule on the underlying statutory issues, he was aware of them. At one point he found, "His testimony had value in connection with the contention the grievants may have been dis- charged for Union activities or for protected activi- ties." It is thus apparent that the arbitrator did con- sider the statutory issues. Although the arbitrator did not spell out in detail his credibility resolutions and fact findings, it is ap- parent from the discussions, conclusions, and awards on the whole that the arbitrator made determinations sufficient to resolve the questions before him. In one award he determined that grievants Jones and Rich- ards had engaged in sufficient violence or threats of violence and foolish behavior to warrant discharge. He also found that the supervisor involved in the inci- dent had been provocative and on that mitigating cir- cumstance reinstated the grievants as new hires. In the other award the arbitrator found that the testi- mony was self-serving and the case full of holes. He did find that there was some evidence that grievant Nelson engaged in misconduct, but he also found that the victim of Nelson's misconduct should not have been present. In any event, the arbitrator found that the grievant had not established his case and, because the Company's case was not fully established, con- cluded that Nelson should be reinstated without backpay. In my view, the awards make sufficient find- ings and conclusions to resolve the unfair labor prac- tice issues. I The arbitrator originally ordered, inter alia, that the grievants would be subject to dismissal if they talked on the job about the grievances. These provisions of the awards appear repugnant to the Act. However, in clarifica- tions of the awards the arbitrator rescinded these provisions. 138 TRIPI.E A MACHINE SHOP, INC. The majority decline to defer because they view the awards as "compromise" awards. I believe that is an improper characterization of the awards. The arbitra- tor found that the grievants had engaged in miscon- duct, but because of various mitigating circumstances discharge was too harsh a remedy under the contract. It is true that the awards are not "all or nothing" awards, but show flexibility in their remedies. Flexi- bility, however, is one of the values of arbitration and is not proof of "compromise" awards. The majority also seem to find something wrong with the arbitra- tor's statement that he may be required "to render an equitable judgment," as if that were an improper standard. But looking at the equities of a situation. as well as the legal niceties. is a standard which should be applied by the Board as well as by arbitrators. In sum, the arbitration proceedings were fair and regular. the parties agreed to be bound, and the re- sults are not clearly repugnant to the purposes and policies of the Act. Accordingly, I would defer to the awards of the arbitrator. 139