Douglas Aircraft Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Douglas Aircraft Company, Component of McDonnell Douglas Corporation and Larry McMurphy. Case 21-CA-12955 January 31, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS, MURPHY, AND PENELLO On October 15, 1976, Administrative Law Judge Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and Respon- dent filed an answering brief in opposition to the General Counsel's exceptions. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. On August 24, 1974, Respondent discharged Charging Party Larry McMurphy.' On August 26, 1974, McMurphy filed an unfair labor practice charge with the Board alleging that his discharge was in violation of Section 8(a)(3) of the Act. He also filed a grievance under the contract that same day. Pursuant to the then-controlling policy enunciated in Collyer Insulated Wire, a Gulf and Western Systems Co.,2 the 8(a)(3) charge was originally deferred to arbitration. In September 1974, McMurphy's Union and Re- spondent attempted to settle McMurphy's situation by Respondent's agreeing to reinstate him, with the issue of backpay going to arbitration, and with McMurphy withdrawing his charge with the Board. McMurphy, while he accepted the first two condi- tions, refused to drop the unfair labor practice charge and the agreement fell through. Thereafter, on July 8, 1975, the arbitrator issued an arbitration award in which he ordered that McMurphy be reinstated without backpay. The arbitrator indicated in the award that McMurphy should get no backpay because of his pattern of alleged abusive behavior at Respondent. The arbitrator also indicated a second reason that McMurphy should be denied backpay was the fact "that he alone was responsible for the rejection of the agreement [under which McMurphy would withdraw the 8(a)(3) charge] to put him back to work in September 1974. The Company made the offer, the Union accepted it, Tucker [another union official] urged him to go along, and McMurphy I McMurphy served as a grievance committeeman at Respondent's Long Beach, California, plant. In this capacity, he performed no work other than his union responsibilities. Each day he reported to a supervisor who would give him a pass enabling him to conduct business in the plant. 234 NLRB No. 80 refused. It is hardly fair to penalize Douglas for his stubbornness." The General Counsel, acting on the theory that the arbitrator's award was repugnant to the Act, then issued the instant complaint. Thereafter, on Decem- ber 4, 1975, Respondent and the Union jointly requested that the arbitrator clarify his decision. Specifically, the parties sought to learn whether the arbitrator had considered the Union's contention that Respondent had discharged McMurphy because of his activities as a union official. The parties also directed the arbitrator to indicate whether the two reasons for denying backpay, namely, the employ- ment record of McMurphy and, as noted, the failure to withdraw the 8(a)(3) and (1) charge that was pending before this Agency, were independent or whether their cumulative effect furnished the basis for denying backpay. At the December 10, 1975, clarification hearing, the union attorney asked the arbitrator whether McMurphy's rejection of the settlement offer (pursuant to which McMurphy would have withdrawn the then-pending 8(a)(3) charge) still served as part of the criteria for the award. The arbitrator responded that: Well I would say the answer to your question is "yes." It is a supporting argument for a denial of backpay. But as I tried to indicate in answer to the question, in the absence of the offer of settlement, in the absence of Mr. McMurphy's rejection of it, I still would have denied backpay. In his Decision herein, the Administrative Law Judge has recommended dismissal of the complaint and deferral to the arbitrator's decision as clarified. We reject that recommendation. Under the Spielberg doctrine,3 the Board defers to an arbitration award where "the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the Act."4 It is clear to us that, in rendering his original award, the arbitrator indicated that McMurphy's refusal to withdraw his unfair labor practice charge against Respondent played a substantial role in justifying the arbitrator's refusal to award backpay. Were this the sole indica- tion of the arbitrator's reasoning we would have little difficulty in disregarding the arbitration award. It is 2 192 NLRB 837 (1971). 3 Spielberg Manufacturing Company, 112 NLRB 1080(1955). 4 Id. at 1082. 578 DOUGLAS AIRCRAFT COMPANY well established that filing a charge under the Act is protected activity. 5 Therefore, an arbitration award that penalized a grievant for exercising this statutory privilege would inherently be repugnant to the Act. This case is somewhat more involved, however, due to the added rationale provided by the arbitrator at the clarification hearing, and the remaining issue is, therefore, whether the arbitrator's remarks at the clarification hearing furnish a basis for curing the objections to the award that, in its original form, is repugnant to the Act. We note that at the clarification hearing the arbitrator again reiterated that McMurphy's refusal to accept a settlement which included the withdrawal of his charge was a reason for the arbitrator's denying him backpay. And, while the arbitrator ascribed McMurphy's pattern of behavior as an independent reason for denying backpay, he failed to analyze what effect, if any, the fact that the incidents arose in the context of McMurphy's job as grievance committeeman had on the backpay decision. There was no uncertainty about the original arbi- tration award-it was clearly repugnant. A "clarifica- tion" of this unambiguous award was sought only after the General Counsel issued the complaint in the instant case. This Board will not sanction and defer to such a prejudicial procedure. Accordingly, in all the circumstances, we find the arbitrator's improper reliance on McMurphy's insis- tence upon his statutory right to file unfair labor practice charges with this Agency to be sufficient reason to require this Board to disregard the award in this case and start anew. In so doing, we also reverse the Administrative Law Judge's Decision insofar as he failed to disregard the arbitration award and failed to consider the underlying 8(a)(3) issue. Our colleague's disagreement with this decision appears to be limited to a difference of opinion as to what makes an arbitrator's award "clearly repug- nant" to the Act under the Spielberg criterion. As stated, we find the award repugnant to the Act because it is premised, in part, on the Charging Party's refusal to drop his unfair labor practice charges against Respondent and thereby to forego the Board's processes. Our dissenting colleague asserts that the proper test, as stated in International Harvester Company (Indianapolis Works), 138 NLRB 923, 929 (1962), is whether or not the award is "palpably wrong." Even assuming that this is the correct test, an assumption we find unnecessary to make, we would nevertheless find that an award I See, e.g., Millwright Local Union No. 1311 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (American Riggers, Inc.), 193 NLRB 995, 999 (1971); Clyde Taylor dbh/a Clyde Taylor Company, 127 NLRB 103, 108(1966). 6 We conclude that it is necessary to remand the case to a different Administrative Law Judge because the onginal Administrative Law Judge which is based even in part on employees abandon- ing any of their Section 7 rights is "palpably wrong." As the Board said in International Harvester, supra at 929, "an arbitrator's award cannot ... oust the Board of its jurisdiction to adjudicate unfair labor practice charges .... " Our colleague argues that the practical effect of our decision will be to exacerbate further the Board's heavy caseload to the detriment of those who seek a speedy resolution of grievances under established bargaining agreements, and those who seek expedi- tious determinations of unfair labor practice charges which are not amenable to resolution by the parties themselves. While we share our colleague's concern, we are mindful of the fact that the Act protects all employees in the exercise of the rights guaranteed by Section 7, not just those who are not covered by a contract containing a grievance-arbitration proce- dure. On the basis of the record before us, however, we are unable to determine the merits of the underlying 8(a)(3) charge. We therefore remand this case to another Administrative Law Judge to consider the 8(a)(3) charge de novo.6 ORDER It is hereby ordered that a hearing de novo be held before a different Administrative Law Judge to be designated by the Chief Administrative Law Judge for the purpose of receiving evidence on the issues raised by the allegations of the complaint and the Respondent's answer thereto in light of our determi- nation herein. IT IS FURTHER ORDERED that the above-entitled proceeding be, and it hereby is, remanded to the Regional Director for Region 21 for the purpose of arranging such hearing, and that the said Regional Director 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 prepare and serve on the parties a Decision contain- ing findings of fact, conclusions of law, and recom- mendations based on the evidence received and that, following service of such Decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applica- ble. indicated, after accepting the arbitration award, that "were this a case of initial appraisal, I would be inclined to agree with Respondent that it was well justified in discharging McMurphy for cause with no remedy of reinstatement or backpay." Accordingly. we believe the interest of justice will be best served by remanding this case to another Administrative Law Judge. 579 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER PENELLO, dissenting: The majority opinion in this case serves to seriously undermine the process of final and binding arbitra- tion as a means for voluntary adjustment of labor disputes and grievances. The Board has for years recognized that grievance arbitration contributes significantly to the attainment of the primary objective of the National Labor Relations Act to promote industrial peace and stability by encouraging the practice and procedure of collective bargaining.7 That recognition was first embodied in Spielberg Manufacturing Company,8 where the Board stated that it would defer to an arbitration award where "the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act."9 In this case, the majority opinion purportedly applies the Spielberg doctrine to an arbitration award but fails to defer thereto primarily on the basis that the award is clearly repugnant to the Act. However, the majority's application of Spielberg is so grossly distorted that, in effect, the "clearly repugnant" element of the Spielberg test has become meaning- less. Thus, in the circumstances of this case, the majority circumscribes the policy underlying Spiel- berg by failing to give effect to an arbitration award which, as shown below, is neither clearly repugnant nor otherwise objectionable under the decision in that case. As set forth in the majority opinion, employee Larry McMurphy was discharged by the Respondent on August 24, 1974. Two days later, McMurphy filed an unfair labor practice charge with the Board alleging that he was discharged in violation of Section 8(a)(3) of the Act.10 On the same day, McMurphy also filed a grievance pursuant to the applicable collective-bargaining agreement alleging that his discharge violated certain provisions of that contract. In September 1974, McMurphy's Union and the Respondent reached a tentative settlement agreement whereby McMurphy would be reinstated if he withdrew his charge with the Board. However, 7 International Harvester Company (Indianapolis Works), 138 NLRB 923, 926 (1962), enfd. sub nom. Thomas D. Ramsey v. N.LR.B., 327 F.2d 784 (C.A. 7, 1964), cert. denied 377 U.S. 1003. 8 112 NLRB 1080(1955). 9 Id. at 1082. l° The General Counsel deferred action on this charge pending arbitra- tion proceedings, pursuant to the doctrine set forth in Collyer Insulated Wire, 192 NLRB 837 (1971). il Award clarification is a well-recognized device in labor arbitration. See Elkouri, How Arbitration Works, pp. 239-240 (BNA, 3d ed. 1973). 12 The parties also posed the following two-part question to the arbitrator: In rendering your decision and award, did you consider the union's contention that McMurphy had been discriminatorily terminated McMurphy refused to withdraw his charge and no settlement was ultimately reached. The grievance was eventually submitted to arbitra- tion. On July 8, 1975, the arbitrator issued an award in which he determined that McMurphy should be reinstated. However, the arbitrator denied McMur- phy backpay, citing two reasons: (1) "his pattern of hostile, abusive, profane, and uncivil conduct"; and (2) "he alone was responsible for the rejection of the [settlement] agreement to put him back to work in September, 1974." Apparently uncertain in their interpretations of the arbitration award, the parties jointly requested the arbitrator to clarify his award in the manner noted in the majority opinion. In so doing, the parties agreed to restore the arbitrator's authority in the arbitration proceeding." The parties posed the following question to the arbitrator at the clarification hearing: "Did you find that McMurphy's pattern of hostile, abusive, pro- fane, and uncivil conduct provided an independent basis for denying back pay or was back pay denied only because of his rejection of an earlier offer of settlement by the Company?" The arbitrator res- ponded: [I ]n absence of the offer of settlement and McMurphy's rejection of it, I would have denied him back pay for the first reason [McMurphy's uncivil conduct] without any question or ambigu- ity whatever in my mind.12 The majority has refused to defer to the arbitration award for two reasons. First, the majority concludes that the arbitration award, as clarified, is clearly repugnant to the Act because one of the arbitrator's reasons justifying the denial of backpay was McMur- phy's rejection of the settlement agreement occa- sioned by his failure to withdraw his charge with the Board. I agree with the majority that the filing of unfair labor practice charges with the Board is protected by the Act.1 3 However, for the reasons stated below, I seriously dispute the majority's decision that the arbitrator's award in this case is because of his activities as a [union] steward? If so, did you find that the company discriminatorily discharged McMurphy in violation of [the collective-bargaining agreement I? The arbitrator unequivocably responded that he considered the union discrimination matter and found that McMurphy was not discriminatonly discharged. He elaborated upon his answers as follows: [T ]he Union presented no evidence, in my judgment, to support that [discrimination I charge, and in its final argument, made no argument to support that charge. It seemed to me that this [discnrimination charge] was such a thin and wholly unsupported contention that I really didn't deal with it. i3 See cases cited by the majonty at fn. 5 of their opinion. 580 DOUGLAS AIRCRAFT COMPANY clearly repugnant to the purposes and policies of the Act. The majority takes issue with the arbitrator's reiteration at the clarification hearing that McMur- phy's refusal to accept the settlement was a reason for the denial of backpay. However, as clearly stated at the clarification hearing, the governing reason for denial of backpay was McMurphy's uncivil conduct; his refusal to accept the settlement agreement was neither controlling nor dispositive of the matter. Nor was his refusal to accept the settlement agreement prejudicial to McMurphy's grievance, since the arbitrator stated that he would not have awarded him backpay in any event. 14 Thus, this aspect of the arbitrator's clarified award citing McMurphy's refus- al to accept the settlement as a reason for denying him backpay merely represents a harmless, inconse- quential, and nonprejudicial departure from Board law which should not bar deferral in this case. Despite the fact that the arbitration award, as clarified, provided valid, independent, and sufficient grounds to deny McMurphy any backpay, the majority incredibly concludes that the award is clearly repugnant to the Act. Obviously, if the majority considered Spielberg at all in its opinion, it grossly misinterpreted that decision, as construed by later Board cases. Spielberg does not require the Board's total agreement with the entire arbitration award. Rather, the proper standard of review, as stated in International Harvester Company, is whether the award is "not palpably wrong."' 5 "To require more of the Board would mean substituting the Board's judgment for that of the arbitrator, thereby defeating the purposes of the Act and the common goal of national labor policy of encouraging the final adjustment of disputes. .1 ." ,6 I fail to understand how the majority can legiti- mately state that the arbitration award in this case is "palpably wrong," or, for that matter, that it is clearly repugnant to the Act. It is apparent, therefore, that the majority is in fact substituting its judgment for that of the arbitrator. The majority achieves this result by, in effect, microscopically dissecting the arbitration award in search of a clearly repugnant isolated statement. In so doing, the majority has failed to consider the allegedly repugnant statement by the arbitrator in the full context of the entire award. Thus, is is clear that the majority has merely paid lip service to Spielberg. This tactic, I regret to say, is utilized all too often by the majority to reach '4 Accordingly, contrary to the view of the majonty, the clarified award did not cause McMurphy to abandon any of his Section 7 rights. ii 138 NLRB at 929. '6 Id See also Container Corporation of America. 210 NLRB 961, 963 (1974). lt See Hawaiian Hauling Service. Ltd.. 219 NLRB 765, 767 (1975) (dissent of Members Penello and Kennedy). See also Clara Barton Terrace results which clearly tend to emasculate the Board decision in Spielberg.17 Second, the majority states that, since the clarifica- tion hearing occurred subsequent to the issuance of the instant complaint, the Board "will not sanction and defer to such a prejudicial procedure." By this statement, the majority in effect assumes that the Union and Respondent requested the clarification hearing for a reason calculated to prejudice McMur- phy. However, neither the General Counsel nor the Charging Party suggested that the clarification hear- ing was designed for such a purpose or resulted in prejudice to McMurphy. Additionally, no breach of the Union's duty of fair representation towards McMurphy has been alleged or appears from the record. Thus, this rationale underlying the majority's refusal to defer is patently fallacious. Furthermore, the refusal to defer to the clarified award because of the timing of the clarification hearing which the parties themselves requested constitutes an unwar- ranted restriction of the parties' contractual and statutory rights to resolve certain disputes by means of an agreed-upon grievance-arbitration procedure. The majority's decision in this case also contra- venes the clearly established policy of Congress expressed in Section 203(d) of the Act, which provides: Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes aris- ing over the application or interpretation of an existing collective-bargaining agreement. The Supreme Court has firmly embraced Section 203(d) 18 and has indicated its approval of the Board's (prior) policy of deferring to an arbitrator's award where such award complies with the Spielberg requirements.'t The majority opinion, however, serves to seriously impair the favored process of final and binding arbitration as a means for voluntary adjustment of contractual labor disputes. In sum, the majority does a great disservice to "the policy of the United States to . . . encourag[e] the practice and procedure of collective bargaining. ". .20 Moreover, the majority's opinion fails to heed the Board's own prior admonition that "[i]f complete effectuation of the Federal policy is to be achieved, Convalescent Center, a Division of National Health Enterprises-Delfern, Inc., 225 NLRB 1028 (1976). "' See, e.g., Gateway Coal Co. v. United Mine Workers of America 414 U.S. 368, 377 (1974). 19 Carey, President of l. U.E. v. Westinghouse Electric Corp., 375 U.S. 261, 270, fn. 7 (1964). 2o Sec. I of the Act. 581 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . . . the Board . . . should give hospitable accep- tance to the arbitral process. ."21 The majority's opinion in this case is characteristic of its recent trend of failing to accord arbitrators even a simple measure of deference.2 2 Thus, the majority's opinion serves notice on the labor-management community that the Board will no longer attempt to strive for "complete effectuation of the Federal policy . . . [by] giv[ing] hospitable acceptance to the arbitral process. .. ." In the future, the Board majority will apparently only defer to an arbitrator's award which is "letter perfect." Finally, this decision makes a mockery of certain of my colleagues' pious protestations about the Board's overwhelming caseload. At a time when the General Counsel is already issuing record numbers of com- plaints and our Administrative Law Judges are faced with tremendous workloads resulting in inevitable backlogs, the majority opinion will only serve to exacerbate this severe administrative problem. 23 Our scarce resources at the Board can certainly be better utilized by concentrating our efforts on meaningful cases rather than by conducting a hearing in this case a meaningless second time.24 The practical result of the majority opinion will certainly be a diminution of service by the Board to two particular groups of the public. First, those who seek speedy determinations of grievances which arise out of collective-bargaining agreements and which are suitable for arbitration will now encounter unnecessary intervention by the Board and the inevitable administrative delay result- ing therefrom. Second, those who seek expeditious determinations of unfair labor practice charges which are not amenable to resolution by the parties themselves will now experience further administra- tive delay due to this unwarranted increase in the Board's already swollen caseload. In my opinion, these results undermine, rather than effectuate, the purposes and policies of the Act. 21 International Harvester, supra at 927. 22 In fact, the Board majority accords the arbitrator's award less deference than a court of appeals accords a Board decision in which the court finds a harmless error has been committed by the Board. 23 See Chairman Fanning's statement before the Labor Subcommittee of the Senate Committee on Human Resources (Sept. 20, 1977), wherein the Chairman projected a record case intake of 61,000 cases in the Board's next fiscal year. In that statement, the Chairman also forecast a potentially grim outlook: 'II It has long been apparent to me that there may come a time when the rising curve in case intake will overcome and defeat our existing procedures for expeditious processing of our cases." The decision in this case may cause that time to come all too soon. 24 In the first hearing, lasting a full 5 days, the Administrative Law Judge made the following findings: [The arbitrator independently considered the contention that McMur- phy had been discriminated against because of his union activities and flatly found no evidence to support this premise. I see no evidence before me to warrant a different conclusion. The record well supports the finding of the arbitrator that the true motive of Respondent was to enforce its . .. rules and not to discriminate against McMurphy. DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This matter was heard at Los Angeles, California, on April 20, 21, and 22 and on May 4 and 5, 1976. The complaint, issued October 23, 1975, and based on a charge filed by Larry McMurphy, an individual, on August 26, 1974, attacks his discharge by Respondent, Douglas Aircraft Company, Component of McDonnell Douglas Corpora- tion, on August 22, 1974, this allegedly violative of Section 8(aX3) and (1) of the Act. I note, as Respondent urges, that the Regional Director originally saw no merit to the complaint on the basis that further proceedings "should be administratively deferred for arbitration." This is treated below. Able briefs have been submitted by the General Counsel and Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGs OF FACT 1. JURISDICTIONAL FINDINGS There is no issue whether, at its Long Beach installation which is engaged in the manufacture of aerospace equip- ment, Respondent meets the Board's jurisdictional require- ments and that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I so find. 1I. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W., Local No. 148, herein the Union, is a labor organization within the meaning of Section 2(5) of the Act. IIl. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction: the Issue It should be initially pointed out that in the instant case the parties were contractually bound to arbitrate any dispute such as that involved herein. See N.LRKB. v. Keller- Crescent Co., 538 F.2d 1291 (C.A. 7, 1976) decided August 2, 1976. At issue herein is whether, after the discharge of McMurphy on August 22, 1974, an award by an arbitrator granting McMurphy reinstatement without backpay is clearly repugnant to the purposes of the Act within the meaning of Spielberg Manufacturing Co., 112 NLRB 1080 (1955). The record discloses that McMurphy declined reinstatement pursuant to the award, this because of Respondent's request that he withdraw the instant charge before the Board, with no opposition and indeed consent by the Union to the position of Respondent. In my judgment, upon the entire record before me, were this a matter of initial appraisal, I would be inclined to agree with Respondent that it was well justified in dis- charging McMurphy for cause with no remedy of reinstate- 582 DOUGLAS AIRCRAFT COMPANY ment or backpay. It may be noted at this point that McMurphy on direct examination was a guarded and slow witness. However, when pressed on cross-examination, in my observation, he displayed much vehemence and tem- per, entirely consistent with the position of Respondent herein as to his attitude throughout his employment. I now deem it in order to treat with the arbitration award of designated impartial arbitrator Dr. Irving Bernstein after hearings held on June 10 and 17, 1975. The Union had contended in its grievance that Respondent, by terminating McMurphy, had breached their contract which provided that there would be no discrimination because of union activities. The Board, as it has stated, defers to an arbitrator's award unless the decision of the latter is "clearly repugnant" to the purposes and policies of the Act. Spielberg Manufacturing Co., supra. A Board majority honored this principle thereafter in Electronic Reproduction Service Corporation, 213 NLRB 758 (1974). On July 8, 1975, Dr. Bernstein issued his decision, in evidence, awarding McMurphy reinstatement but without backpay for reasons described more fully below. The first was his pattern of "hostile, abusive, profane and uncivil conduct, of which the Hilliard incident is only the most dramatic illustration," hardly a complimentary appraisal. As a second reason, he submitted the rejection by McMur- phy of Respondent's offer to return him to work. As noted, the Union concurred in the settlement and urged McMur- phy to accept it. But McMurphy refused because Respon- dent asked, in an effort to wind up the matter, that McMurphy withdraw the instant charge; this he declined to do. The arbitrator later affirmed that his decision stood alone on his first reason, which he deemed far more important, and that the second was simply a supporting reason. Thus, Respondent was put in the position of closing the matter with the approval of the Union according to the decision of the arbitrator, but contrary to the resistance or opposition of McMurphy. There is no evidence of hostility to McMurphy because of his union activities as such and the arbitrator explicitly so found. The record well demon- strates his truculence, and Walter Christensen, then man- ager of Respondent's Labor Relations Support Centers, referred to McMurphy in his testimony as "the bum of the bunch." The arbitrator in his initial decision found certain facts but avoided some credibility resolutions. This decision, as well as a subsequent clarification thereof and other eviden- tiary matters, is summarized below. It is undisputed that McMurphy, due to a normal reduction in force, would have been laid off in March 1976. Thus, the ultimate and sole issue herein is the award of backpay to McMurphy. B. Sequence of Events The initial decision and the relevant facts are not in serious dispute. McMurphy was hired in October 1967; was classified as an "A" mechanic; was very active in union activities; was elected a steward in 1968; and was elected a grievance committeeman in 1971, the position he enjoyed at the time of his termination. The arbitrator found, his decision and the record before me well demon- strates, and I find, that his relations with Respondent in his years of employment were indeed stormy, to say the least. On October 23, 1975, the Regional Director decided or was instructed not to honor the award of Dr. Bernstein and issued the instant complaint. On December 4, 1975, a hearing for clarification of the award was jointly requested, and such a hearing was duly held before Dr. Bernstein on December 10, 1975. All parties were represented, including McMurphy by his representative, Bob Berghoff, formerly but no longer a union official, and the transcript of some 30 pages is in evidence. Dr. Bernstein therein stated that he had independently considered the contention that McMurphy had been discriminated against because of his union activities and flatly found no evidence to support this premise. He also declared that the two reasons he relied upon were indepen- dent and that, in any event, he would have denied McMurphy backpay because of his "pattern of hostile, abusive, profane and uncivil conduct" in the Hilliard incident, described below. As will be readily apparent, Respondent, with ample justification, under Board prece- dent, could have discharged McMurphy because of the Hilliard incident. In fact, the General Counsel, in his brief, conceded that his conduct on this occasion was "egre- gious." Respondent, on the other hand, listened to the earnest pleas of the union representatives to give McMur- phy one more chance. It so yielded, to its dismay herein, and this led to the ultimate incident described below and his discharge, the crux of this case. The award of the arbitrator issued July 8, 1975, and consisted of some 13 closely typed pages. Initially, it posed the issue whether Respondent violated article II, section 2, paragraph (a), of the contract when it discharged McMur- phy on August 22, 1974, and, if so, what remedy would be appropriate. As indicated, hearings were held on June 10 and 17, 1975. Although the arbitrator primarily relied upon incidents late in McMurphy's employment, he did set forth certain facts, supplemented before me, relating to conduct com- mencing in 1972. He noted that in February of that year Respondent instituted a new procedure for clocking out at the time- clock. Employees had previously lined up at the timeclock I or 2 minutes prior to the termination of the shift. Respondent issued an order that the employees should stay near the planes on which they were working until the buzzer for checkout time went off. McMurphy considered this unsafe, for unspecified reasons, and protested vigor- ously. It appears that he then stationed himself at the timeclock for this I or 2 minutes prior to the checkout time over the objection of management. Respondent discharged him on February 7 for insubordination in violating compa- ny rule 31 but reinstated him 15 days later. Another union official, Tucker, restrained McMurphy on this occasion and used certain profanity; he was suspended for 5 days but was later reimbursed for the 5 days. To repeat, McMurphy on this occasion, in effect, suffered a 15-day disciplinary layoff, as found by the arbitrator. The arbitrator next referred to an incident on February 6, 1973, and characterized it as hazy. He considered memoranda submitted by two supervisors and also the oral 583 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony of McMurphy. This involved a grievance filed by a female employee, Sarsten. There was an uncompli- mentary exchange between McMurphy on the one hand and two supervisors. The arbitrator has set forth the exchange of profanity on this occasion which I deem inappropriate to repeat herein. Respondent gave McMur- phy a 5-day suspension because of the incident which involved the fact that McMurphy had removed Sarsten from her job without permission from management. The arbitrator assumed that a grievance had been filed, and Respondent -educed the suspension for 3 days. He noted that McMurphy had testified that he planned to take the other 2 days off to celebrate his birthday; in my opinion, this does not detract from the merits of the incident and this amounted to a 2-day suspension. The arbitrator took note of the fact that McMurphy had continual difficulty with Elizabeth Wood, a senior labor relations representative, with whom he dealt at the second step of the grievance procedure. He contended, according to the arbitrator, that she took unreasonable positions on grievances and caused him to lose his temper. She wrote memoranda to her superiors on August 22, 1972, and on January 30, 1973, and testified before the arbitrator. Wood testified before me, as did McMurphy, who conceded using what I would consider exceedingly profane language. Obviously, language in a manufacturing plant is not language customarily used in the parlor but, in my judgment, McMurphy simply went too far. As a result, on August 29, 1972, Manager of Labor Relations C. S. Wilhelm, as found by the arbitrator, told McMurphy in the presence of Union Official Tucker that Respondent would not put up "with this kind of behavior," that he had to control himself, or that in the alternative he would be disciplined. On January 7, 1974, according to the arbitrator, Supervi- sor Darling gave McMurphy a verbal correction interview for unexcused absenteeism. He filed a grievance. This correctional interview was removed from his file. In processing the matter, McMurphy filed another grievance against John Szymanski of Respondent's labor relations department for alleged "harassment." Respondent disput- ed this, and the Union withdrew the grievance. The arbitrator next treated with McMurphy's handling of a grievance concerning the date vacation and sick leave pay would be paid. There was no evidence introduced before me on this topic, and the arbitrator saw fit, and I agree, to assign little relevance to this issue. However, the arbitrator did note that there was some friction between McMurphy and Supervisor of Labor Relations Woodward over the incident with McMurphy claiming that he was "tired of taking orders" from Respondent. The arbitrator noted that the relationship between Woodward and McMurphy was strained, and there is a conflict, not resolved by the arbitrator, as to a subsequent confrontation between Woodward and McMurphy, more specifically, whether Woodward threw McMurphy against a wall. In my observation of McMurphy, it would seem more likely that Woodward was not the aggressor on this occasion. As noted by the arbitrator, General Foreman Hilliard issued a memorandum on May 21, 1974, requiring that employees in certain areas wear safety glasses at all times. In July Hilliard ordered the removal of stools and chairs from certain areas in department 411 because there were conveyors in the area moving large and heavy equipment. This incident, as it ultimately unfolded, was relied upon heavily by the arbitrator. He noted that McMurphy protested this move and was "loud and abusive and extremely argumentative." McMurphy was next told by Supervisor Carey that safety glasses were required, and McMurphy refused to wear them. He told Carey that he would wear them if Carey obtained them for him. McMur- phy then left, saying he would return the next morning. He did return on July 17. The arbitrator found, according to Carey, that McMurphy again refused to wear the safety glasses. McMurphy then approached Hilliard, who was discussing the problem of the stools with two representa- tives of the Union; namely, Mason and Richards. Hilliard wrote a statement of the following conversation which is not disputed. McMurphy demanded the return of the stools. Hilliard attempted to explain that there was moving equipment in this immediate area and that the stools presented a safety hazard. The statement of Hilliard is reflected on page 5 of the arbitrator's decision and in essence is reflected in similar fashion in the testimony before me. According to the arbitrator, McMurphy stated to Hilliard "What the f- gives you the right to take these chairs away from the people." Hilliard responded that this was his area and his responsibility. McMurphy then stated "it's none of your goddamn shi- business" and that he wanted the stools returned. Hilliard responded that he should clean up his language, not get emotional, wear his badge on his chest as required and not on his belt, and wear safety glasses as he had been instructed the previous evening. The arbitrator found, and my record similarly demon- strates, that Hilliard stated he had an appointment to make a telephone call and went to his office some distance away. He went in, sat down in his chair, and started to make the telephone call. McMurphy appeared on the scene and stated, "You can make that phone call standing up, you don't need a chair." Hilliard responded that this was a private office and he should leave. McMurphy then said, "You don't need any God damn chair. Stand up." Hilliard directed McMurphy to leave the office, McMurphy did not comply, Hilliard asked his clerk to call security and at this point McMurphy left. I find without any doubt that he was not presenting a grievance or that, in any event, he exceeded proper bounds. Hilliard reported this incident to Branch Manager of Labor Relation Support Centers W. H. Christensen (also spelled Christenson herein). Christensen then decided to discharge McMurphy. He called in three union representa- tives, Tucker, Richards, and Thomas, to inform them of his decision. They protested and pleaded that he not do this because it would cause a political upheaval within the Local. Christensen conferred with his superior, Wilhelm. They decided not to discharge McMurphy, but to give him a final warning, and this took place in his office on July 24, 1974. The General Counsel has made a contention that this was an oral rather than a written warning which would be customary, but I see no merit to this. Nor do I deem this as condonation of the incident, as the General Counsel in 584 DOUGLAS AIRCRAFT COMPANY effect urges. The simple fact is, and the arbitrator later noted, that McMurphy could have been and probably should have been discharged for his behavior on this occasion, and Respondent because of its pending problems with the Union yielded to pleas of the latter not to terminate him because of this incident. The arbitrator took note of a memorandum Christensen wrote to Wilhelm on this day. He told McMurphy therein that he was a disgrace to himself and his union, that it was the responsibility of McMurphy to represent union mem- bers and that Respondent would run the plant. He told him that they had been prepared to fire him but had yielded to the pleas of the union committee. He told McMurphy that, if another incident came to his attention, they would fire him "on the spot." McMurphy asked at this point if Hilliard had the right to have his people stand up when they could just as well sit. Christensen responded that Hilliard had the right to do what he wanted and that, if something was amiss, there was a proper way to challenge this. Union Representative Richards then told McMurphy that he would not intercede in his behalf if the Company took discharge action in the event of another episode. Richards then asked McMurphy if he would apologize to Hilliard and McMurphy did not answer; Richards reacted strongly. Thomas then told McMurphy that he owed Hilliard an apology. Christensen ended the meeting by telling McMurphy that this was a final warning, even though it was oral and not in writing. McMurphy testified before the arbitrator that he made two or three trips to the office of Hilliard to apologize but that Hilliard was not present. I deem this an unacceptable explanation because McMurphy was on union affairs full time with authority to call or visit the man. In my judgment, he simply did not make the trips or calls. The final incident occurred on the early afternoon of August 15, 1974. McMurphy's duties were in certain listed buildings, but building 13 was not formally in his assigned zone, as found by the arbitrator, and I concur on a preponderance of the evidence. There was testimony before the arbitrator that union representatives had investi- gated grievances outside their zones without complaint from the Company. Respondent showed, however, that Union Steward Sparks was disciplined for being outside his area. Several employees had filed grievances alleging that "B" employees in department 505 in building 13, not in the area assigned to McMurphy, were performing "A" work, thus thereby jeopardizing their recall rights. On Thursday, August 15, James Wells (also spelled Welles), the district steward in department 505, asked McMurphy to visit the department to inspect the work. This was occasioned by the fact that Wells was scheduled to leave for a union summer school the next day and wanted McMurphy to be aware of this before his departure. The two were also joined by Wayne Allen, also a district steward, in an area from which several of the grievances had originated. Allen had a pass from labor relations to be in department 505. There is some conflict as to whether this incident took place shortly before the break between 2 and 2:10 p.m. or immediately thereafter, but this I deem irrelevant to the issue. Indeed, the arbitrator noted that there was a sharp conflict of testimony over what took place. There were two aspects of this. The first was whether McMurphy was in a department which he was not authorized to enter and, secondly, if, in violation of rule 34, two employees were pulled off the job to discuss a potential grievance without permission from supervision. Indeed, the arbitrator noted "it is extremely difficult to reconstruct what actually took place." McMurphy, however, commented, at one point, that it was a violation of rule 34 to do what they allegedly did without permission. The account of the three union representatives is that they went to an area supervised by one Gath. They took no one off of the job and Gath asked no one for a pass. They placed this directly before the 2 p.m. break, although Gath, in his testimony before me, placed this as directly after the break. According to Gath, they merely inspected job descriptions in his section unrelated to where the three next proceeded. The union representatives then moved to another area in the department near the desk of Foreman Harper and spoke with two employees who were working under the wings of an airplane, Pearl McKizzie (now Walker) and Norma Lancaster. Foreman Harper asked the union people what they were doing in the area, and they replied they were investigating grievances. Harper asked Wells, but not the other two, for a pass. Wells did not have one. McMurphy had one (although, according to Respondent, not authorized for this area) but did not display it. They denied pulling people off their jobs. The arbitrator found, according to the testimony of Harper and Gath, that, just before the break, Harper saw the three union personnel and two employees under the wings of the airplane. The two employees should have been working on ladders on the wings, but were standing on the floor pointing to the aircraft. They had not been given permission to leave work. Harper phoned one, Thomas, in the labor relations department to report that union repre- sentatives were pulling employees from their jobs and asked what to do. Thomas told him to remove all three from the area. Harper and Gath, asked to witness this, approached, and Harper questioned them about the pur- pose of their presence. They responded that they were investigating a grievance concerning misclassification. Har- per asked if they had permission to do so, Wells responded that this was not required, and Harper directed them to leave. Wells made a phone call to some union source in which he used some profanity, and they all then left. Respondent took disciplinary action, as the arbitrator found and as the record before me demonstrates, against all involved in the incident. Wells received a 3-day suspension. Allen was given a correctional interview, and the two ladies received verbal reprimands. As the arbitrator pointed out, the case of McMurphy "is far more complicat- ed." This was due to his long record of discipline and therefore the discipline was more severe. There is some testimony about a flyer which was circulated shortly after this incident involving an intra- union dispute. This was washed out by the arbitrator and, as I read the record before me, actually played no part in the ultimate resolution of the McMurphy issue. 585 DECISIONS OF NATIONAL LABOR RELATIONS BOARD One Novack, a labor relations representative for Respon- dent, heard a rumor that McMurphy had come to the plant early on August 21 to distribute and post these flyers. They related to a radio program on the previous evening, and the timeliness of this puzzled the arbitrator, as one can well appreciate. McMurphy denied coming to the plant early and posting these flyers, although he conceded that he had some in his possession. Christensen had been informed in writing of both the incidents in department 505 and the flyers and decided to follow through with his "final warning" given to McMur- phy. He met with several union representatives and told them that he intended to discharge McMurphy. He initially stated it was because McMurphy had plastered the build- ing with the flyers and then said that this was the straw that broke the camel's back. They then moved to another office. Christensen asked McMurphy whether he had passed out the flyers and he denied it. "At that point, Christensen dropped the flyer question," as the arbitrator noted. Christensen then came forward with two points. Initially, he said that the conduct of McMurphy in department 505 on August 15 was a violation of company rule 34. Secondly, this was the culmination of a series of acts which were in conflict with company rules and which were abuses of his status as a union officer. He then discharged McMurphy effective August 22. McMurphy filed a grievance on August 26 asking for immediate reinstatement with full pay. On the same day, he also filed a charge with the Board attacking the harassment and termination of shop stewards, including himself, and also requesting injunctive relief under Section 10(j) of the Act. In September. Respondent and the Union were negotiat- ing over a new contract. Respondent then made an offer concerning the McMurphy matter, which the Union accepted. It offered to restore him to his former job, effective September 10, 1974, that there would be no backpay for the period since August 22, and the issue of backpay would be submitted to arbitration, with McMur- phy withdrawing his charge before the Board. Christensen, on September 9, prepared a memorandum to put this into effect. Tucker, of the Union, explained this agreement to McMurphy and recommended that he accept. McMurphy was willing to accept reemployment and arbitration of the backpay issue but refused to drop the unfair labor practice charge. He was unaware of Board policy under Collyer Insulated Wire, 192 NLRB 837. As the arbitrator noted "The deal fell through" and, on September 10, Respondent withdrew its offer. It is manifest to me at this point that the desire of Respondent that the request to withdraw the charge should not be equated with such a position of a respondent in other cases. As will appear, the arbitrator disposed of the case, and Respondent simply wanted to wipe the docket clean and restore McMurphy to work. I see no animus herein and, as previously indicated, in my judgment, the evidence would preponderate in favor of a finding that the discharge was justified and without backpay. I There is evidence that a lesser penalty had originally been recommend- ed by one unfamiliar with the Hilliard incident, or "prior" as it were, and the The arbitrator noted that McMurphy filed a claim for unemployment insurance, and his claim was rejected; he appealed and a referee of the unemployment insurance appeals board found in his favor. He was ultimately awarded same. The arbitrator also noted a subsequent incident when, no longer working for Respondent, McMurphy passed out some union election literature to employees entering the plant. On this occasion, McMurphy, encountered by a security officer, used some more of his customary profani- ty. The General Counsel has argued in his brief that the earlier incidents were "ancient history" for which no disciplinary action had been taken, although the record does disclose, as noted, that there had been prior discipline. He conceded that no matter how "egregious" the Hilliard incident may have been regarded by Respondent and for that matter, by the arbitrator, no disciplinary action was taken against McMurphy. But the record well demon- strates, as I view it, that Respondent would have been well justified in discharging McMurphy after the Hilliard incident but because of current labor problems yielded to the pleas of responsible union representatives that this action not be taken and then adopted the position that he be given one more chance. As noted, I do not view this as condonation; a contrary view would amount to a blanket insurance policy for one in the position of McMurphy.1 C. Concluding Findings In my judgment the complaint should be dismissed in accordance with the Spielberg doctrine because the deci- sion of the arbitrator is not clearly repugnant to the Act. He made a flat finding that McMurphy was not discrimi- natorily terminated because of his union activities. I see no evidence before me to warrant a different conclusion. All proceedings before the arbitrator appear to have been fair and regular, all parties agreed to be bound thereby, and there is not an iota of evidence of less than fair representation of McMurphy by the Union. Further, the additional evidence before me, such as I have set forth herein, discloses nothing different. And, as indicated, Respondent was amply justified in carrying through its original intention to discharge McMurphy. The record well supports the finding of the arbitrator that the true motive of Respondent was to enforce its legitimate rules and not to discriminate against McMurphy. Respondent has argued in its brief that industrial chaos would reign if employers were required to condone and accept conduct of the type engaged in by McMurphy over so long a period of time. Moreover, turning to the August 15 incident, although the arbitrator referred to this as "technical," this does not mean that this was a pretextual cause for discharge, and indeed it was found by him that it was not. And, in the course of the clarification proceeding, the arbitrator found that without any question or ambiguity he would have denied backpay solely because of the hostile, abusive, profane, and uncivil conduct of McMurphy. The denial of backpay as such is not clearly repugnant to the Act. See last straw position then taken by Respondent and that this was accordingly changed by higher management. 586 DOUGLAS AIRCRAFT COMPANY Ohio Ferro-Alloys Corporation, 209 NLRB 577 (1974), and Fikse Bros., Inc., 220 NLRB 1301 (1975). CONCLUSIONS OF LAW 1. Douglas Aircraft Company, Component of McDon- nell Douglas Corporation, is an employer whose operations affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W. No. 148, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(aX3) and (1) of the Act. [Recommended Order for dismissal omitted from publi- cation.] 587