Crown Zellerbach Corp.

CROWN ZELLERBACH CORPORATION 385 Crown Zellerbach Corporation, Flexible Packaging Division and Teamsters Local Union No. 688, af- filiated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 14-CA-7517 December 9, 1974 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On June 17, 1974, Administrative Law Judge John M. Dyer issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an an- swering brief to General Counsel's exceptions. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed. DECISION insubordination but that discharge was too harsh a remedy and ordered him reinstated with 2 months' backpay. A mo- tion to clarify the arbitrator's decision was filed by Respond- ent. Eventually Respondent and the Charging Party reached agreement on the interpretation of the arbitrator's decision and Freant was reinstated around February 3, 1974. The parties agreed that Freant should receive the 2 months' back- pay plus additional backpay from around the time of the arbitrator's decision until his reinstatement. On April 9, 1974, the Acting Regional Director issued a complaint and notice of hearing in this matter alleging in addition to the jurisdictional and commerce allegations that Respondent had violated Section 8(a)(1) and (3) of the Act by its discharge of Freant on March 27, and not reinstating him until February 4, 1974, and by not making him whole for his lost wages during that period. Respondent's answer admitted the requisite jurisdictional and commerce allegations but denied that it had violated the Act in any manner. The answer further set out that arbitra- tion proceedings had been held and that the decision and award had been complied with and asked for the dismissal of the complaint. Trial of this matter was held in St. Louis, Missouri, on May 8, 1974, and the parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally. Briefs from Respondent and General Counsel have been received and considered. At the trial of this matter Respondent renewed its motion to dismiss the case based both on the facts presented and on the basis that the arbitra- tion award with which it had complied met the tests of Spiel- berg Manufacturing Company, 112 NLRB 1080 (1955), for deferral by the Board. I will grant Respondent's motion to dismiss this case on the basis that the arbitration proceeding in this case does meet the Board's Spielberg criteria and since there has been compliance with the arbitrator's award the complaint and charge should be dismissed. On the entire record in this case, based on the evidence received, I make the following: STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: Teamsters Lo- cal Union No 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, herein called Local 688, the Union or Charging Party, filed a charge against Crown Zellerbach Corporation, Flexible Packaging Division, herein called Respondent or the Company, on August 6, 1973,' alleging that the Respondent had violated Section 8(a)(1) and (3) of the Act by its dis- charge of Milton Freant on March 27. On September 7, the Regional Director for Region 14 noti- fied Respondent and the Charging Party that he would defer proceeding on the instant charge since arbitration which might resolve the issues was actively being pursued in accord- ance with the grievance procedure in the contract between the Charging Party and Respondent. On November 28, the arbitrator issued a decision and award, which in essence found that Freant had been guilty of Unless otherwise stated, all dates herein refer to 1973 FINDINGS OF FACT I COMMERCE FINDINGS AND UNION STATUS Respondent is a Nevada corporation owning and operating a facility in St. Louis, Missouri , where it has been at all times material herein engaged in the manufacturing and distribu- tion of flexible packaging material and related products. Re- spondent annually manufactures , sells, and distributes from its St. Louis, Missouri, facility, products valued in excess of $50,000 which are shipped directly to points located outside of Missouri. Respondent admits and I find that it is an Employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find, that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. 215 NLRB No. 34 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE ALLEGED UNFAIR LABOR PRACTICES AND THE ARBITRATION DECISION Milton Freant, prior to -his discharge and since his rein- statement, has been the chief shop steward for the Charging Party at Respondent's plant. In his position he has a key to a designated glass-covered union bulletin board as provided by the contract between the parties. The contract states in article XIV, section 1, that the union bulletin board is to be used in the following manner: The Union shall have the right to post official Union notices or notices of social gatherings on the bulletin board furnished by the Company. General Counsel's brief states that the contract language contains no prohibitions as to what could be posted, but the language is plain that official notices or notices concerning social gatherings could be posted. I cannot accept the General Counsel's claim that anything posted by Freant is an official union notice because he is a shop steward. The language must be constructed in its generic sense. In addition to such notices as are provided by the contract terms, Freant occasionally posted other matters on the bulle- tin board. According to the testimony, Freant has been an outspoken critic of some of the positions taken by the Re- spondent during his years of employment, when acting as a shop steward, the chief shop steward or as a member of the union contract negotiating team . He testified that on occa- sions he has removed items which were taped to the glass exterior of the bulletin board put there by others. Around March 19, Freant posted an item which he had copied from the Teamsters' handbook regarding shop stewards.' Later that day, production manager, Dean Bidwell, came to Freant's job area and asked him to take it down. Freant refused. Bidwell said he would have someone open the glass doors and remove it. A short while later Bidwell asked for and received Freant's key to the bulletin board, removed the clipping and returned the key. Freant testified that Mr. Bid- well had also been perturbed concerning Freant's handling of a grievance for another employee. On March 27, Freant clipped a five-line item about a ruling from the Occupational Safety and Health Review Commis- sion concerning the use of forklift trucks to lift employees and placed it on the bulletin board.' Mr. Bidwell shortly the- reafter came to Freant and instructed him to remove it. Freant stated he saw nothing wrong with it and refused. Bidwell gave Freant a specific amount of time within which to remove it or be discharged. Freant did not remove the item within the time alloted and was terminated. 2 The typed posting which apparently had a last line added by Freant is The following are workers needs 1 A feeling of security 2 A feeling of job growth 3. A feeling of involvement 4 A feeling of importance 5 A feeling of freedom of expression 6. A sense of dignity 7 A feeling of being appreciated Never let management forget it The problem here is-they have . 3 Respondent considered the item derogatory to its safety program since it had purchased a safety cage for employee use with forklift trucks A grievance was filed and the matter proceeded through the steps of the grievance procedure as provided by the con- tract. The parties selected a neutral arbitrator who conducted a hearing, and issued his determination as stated previously. At the trial of this matter, the parties and General Counsel stipulated that in interpreting the arbitrator's decision, Re- spondent and the Charging Party agreed to reinstate Mr. Freant to his former position as provided in the arbitrator's award, and in addition to the 2 months', backpay provided by the arbitrator, Freant would be paid for the time between the arbitrator's award and the date of his reinstatement. The parties agreed that this agreement had been fully carried out. At the trial in this matter, the Charging Party and the Respondent stipulated that the tests laid down by Spielberg were fully met in this case. The Charging Party stated that while it had hoped Freant would have received more from the abritrator than what he was actually allowed, it felt bound to accept the award as binding, since it was not clearly repug- nant to the Act. The General Counsel stipulated that the first two tests of Spielberg had been met by the arbitration, i.e., that the arbi- tration proceedings were fair and regular and that all parties had agreed to be bound by the results. In regard to the third test, General Counsel took the position that the award was repugnant to the purposes and policies of the Act, solely on the basis that it did not provide for full backpay. As stated by the General Counsel, gross backpay for the period from March 27, 1973, until February 4, 1974, would have amounted to $6,600. Mr. Freant received 2 months' gross backpay plus 2 months' net backpay for a total of $2,450 or approximately 40 percent of what the gross back- pay bill would have been General Counsel contends that since only 40 percent of the gross backpay bill was received as a remedy, it is clearly inadequate and as such, is repugnant to the policies and purposes of the Act. Analysis and Conclusions In Spielberg Manufacturing the Board said, "In summary, the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbi- tration panel is not clearly repugnant to the purposes and policies of the Act. In these circumstances we believe that the desirable objective of encouraging the voluntary settlement of labor disputes will best be served by our recognition of the arbitrator's award." In Collyer Insulated Wire, 192 NLRB 837 (1971), the prin- cipal opinion noted that the Supreme Court in its decision of Carey v. Westinghouse Electric Corporation, 375 U.S. 261, had quoted at length from the Board's decision in Interna- tional Harvester Co., 138 NLRB 923 (1962), where the Board said: "The Act, as has repeatedly been stated, is primarily designed to promote industrial peace and stability by en- couraging the practice and procedure of collective bargain- ing. Experience has demonstrated that collective-bargaining agreements that provide for final and binding arbitration of grievance and disputes arising thereunder, `as a substitute for industrial strife,' contribute significantly to the attainment of this statutory objective." The Board also noted that in Timken Roller Bearing Company, 70 NLRB 500, it had deferred to an arbitrator's CROWN ZELLERBACH CORPORATION decision "- despite the fact that the Board would otherwise have found that an unfair labor practice had been committed. The Board explained 'It would not comport with the sound exercise of our administrative discretion to permit the Union to seek redress underthe Act after having initiated arbitration proceedings which, at the Union's request, resulted in a deter- mination upon the merits."' Member Brown in his concurring opinion in Spielberg stated, "If the Board were to decide such a case on the merits, it would permit the parties to ignore their agreement. This would ill serve the statutory purpose of encouraging collec- tive bargaining, especially where that part of the agreement the parties could ignore is itself an integral part of the bar- gaining process." He also stated, "If an employee could initi- ate and repudiate the acts of his duly designated representa- tive at his whim, the statutory objective of fostering voluntary settlements by parties to collective- bargaining agreements cannot be attained. This was not intended by Congress and is contrary to the fundamental purposes of the Act." In his dissenting opinion in Spielberg, Member Fanning stated, "Even an unresolved minimal alleged unfair labor practice, involving the interpretation of specific contractual provisions, may not require the serious machinery of the Board where the record indicates that the parties are in the process of resolving their dispute in a manner sufficient to effectuate the policies of the Act. The Spielberg line of cases, with some variation has been settled Board law for the past 16 years." In the instant case, General Counsel's position seems to be a rather novel approach. The sole ground on which the arbi- trator's decision and award is claimed to be repugnant to the purposes and policies of the Act, is that the award which approximates 40 percent gross (not net) backpay does not measure up to the Board's standards for awarding backpay to remedy discriminatory discharges in its unfair labor prac- tice cases. To follow General Counsel's theory would mean that in each case where there was an arbitrator's award which did not provide for full backpay, the General Counsel should pursue the case, apparently determine what the gross back- pay would be, probably try to determine the amount of net backpay since it would be substantially different from gross backpay, and in effect decide the backpay issue and use that as a criterion to determine whether it adequately matched the arbitrator's award. Moreover, there is some flexibility in reaching the net backpay figure and there would be questions of what standards would we have to look for and apply Would there be a determination that "X" percentage was acceptable but that "Y" percentage was not? In short, if we follow General Counsel's theory we would come to a math- ematical formula which would decide whether an award was repugnant to the Act's purposes and policies. It would seem that in determining to defer to the arbitra- tion proceedings and in deferring to an arbitrator's decision and award, the Board had no such concept in mind as Gen- eral Counsel now proposes. The Board, by this line, would be in the business of mathematically evaluating arbitrator's awards and in effect telling arbitrators that if there is some concept of an unfair labor practice in the case, the arbitrator must bow to the Board's concept of backpay or it would not defer to his decision This would also appear to put the Board 387 into the arbitration field in a backhanded manner, an area in which it is statutorily prohibited. The Board stated in Ohio Ferro- Alloys Corporation, 209 NLRB 577 (1974), that "Where an employee has attained his job through the use of a false statement in his application, it is not repugnant to the purposes and policies of the Act to order less than reinstatement with backpay " Certainly in reaching his decision and issuing an award, an arbitrator may consider the relative merits of the positions of the parties before him and may determine to give a complete award or a partial award, depending on how he assesses the merits of the situation. In this case, the arbitrator found that Freant's actions were deserving of some censure but not the punishment which Respondent had visited upon him and determined that Freant should be reinstated with a partial backpay remedy. This is the essence of arbitration. The Board has, as in the above- cited case, agreed that it is not repugnant to its pur- poses and policies to award no backpay. The Board certainly would not place itself in the position of stating that partial backpay is repugnant to the purposes and policies of the Act when the sole issue is the amount of backpay. If the proceed- ings were not fair and regular or if the award on its face contained grievous error, the Board might wish to scrutinize the matter, but that is not the situation here. General Counsel's brief argues that we must assume and concede that Freant was discharged in violation of Section 8(a)(3) of the Act. Apparently he feels that the arbitrator should have assumed this proposition as well and that if he had, the arbitrator would have given a 100- percent backpay award. I cannot determine that the arbitrator did not con- sider some of the aspects of Freant's union leadership and activities but he decided that the defense of insubordination was the reason for the discharge. The General Counsel's case to support an 8(a)(3) violation is not overwhelming. I cannot say on the basis of the record that the arbitrator's decision is clearly erroneous. And I will not say that since the award does not accurately match the Board's backpay awards, that the arbitrator's decision and award is repugnant to the pur- poses and policies of the Act. Accordingly, I grant Respondent's motion to dismiss the charge and complaint in this matter, on the basis that the award of the arbitrator as interpreted by the parties herein, meets the Spielberg test. Upon the basis of the foregoing findings and conclusions, I hereby issue the following recommended: ORDER' The complaint and charge in this matter are hereby dis- missed on the basis that the arbitrator's award as interpreted by the parties to the arbitration, meets the Board's criteria as set forth in Spielberg. ° In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes