Richmond Tank Car Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richmond Tank Car Company and Local 469, Inter- national Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO. Case 23-CA-7383 September 28, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND HUNTER On March 28, 1980, Administrative Law Judge David L. Evans issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party each filed exceptions and a supporting brief. 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, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. This controversy arose when Respondent dis- charged employee James Rowell on July 21, 1978. The Union grieved the discharge under the collec- tive-bargaining agreement and pursued it through arbitration. The arbitrator found that Respondent had contractual "just cause" for the discharge. The Administrative L.aw Judge deferred to the award and recommended dismissal of the 8(a)(3) allega- tion in the complaint. We disagree with the Administrative Law Judge. For the reasons set forth below, we find the award repugnant to the purpose and policies of the Act under the principles of Spielberg Manufacturing Company, 112 NLRB 1080 (1955). Accordingly, we will not defer and, having considered the case on its merits, we find that Respondent violated Sec- tion 8(a)(3) of the Act in discharging employee Rowell. Respondent services and repairs railroad cars at a facility connected by 12 railroad tracks to a Mis- souri Pacific freight yard. On June 15, 1978, an em- ployee was severely injured when several railroad cars rolled unattended into the repair facility and crashed into the switch engine he was operating. Only his alert efforts prevented the cars from crashing into the paint shop where other employ- ees were working. After work on June 19, approxi- mately 30 of the 45 employees gathered at union steward James Rowell's home to complain about the unsafe working conditions which they believed led to the accident-Respondent's failure. even after repeated requests, to provide an effective de- 264 NLRB No. 25 railing system to prevent unattended cars from en- tering the facility. The employees were also upset about the inad- equate filters provided by Respondent for the respi- rators worn by them to protect themselves from toxic fumes released in the car cleaning process. They told Rowell that they intended to walk off the job in protest. Rowell informed Union Business Manager Frank Lamb that evening about the meeting. The next morning Rowell inspected the tracks and found only a single set of stops which were designed not to stop a runaway car but to hold a car in place after it is brought to rest. However, he found that even the single set of stops was improperly in- stalled. When the employees learned this, approxi- mately 42 of them followed through on their deci- sion of the previous night and walked off the job. As Rowell himself was leaving he met Superin- tendent C. W. Sigley and responded to Sigley's question as to "what the hell" was going on by re- plying that the men were "going out on unsafe working conditions." Rowell concluded the con- versation with a profanity directed at Sigley per- sonally. Respondent's vice president, Glen Welsch, conducted an investigation of the incident and, on July 21, 1978, discharged Rowell. He told Rowell the reasons were "insubordination and leading the walkout." The Union's grievance over the dis- charge was denied and the matter wvas taken to ar- bitration in January 1979. The arbitrator's award issued on May 9, 1979. The contract included a "just cause" for dis- charge clause, a clause requiring Respondent to make "every reasonable effort to maintain safe working conditions," a provision that the Union call no strike "except for a violation of this Agree- ment," and a provision subjecting employees who "stopped work without approval of the Union" to immediate discharge. The arbitrator found, as to the alleged unsafe working conditions, that Respondent was "inad- equately responsive to the request of the Union representatives for corrective action, and had failed in its [contractual] responsibility to provide the necessary equipment to correct these unsafe condi- tions." The arbitrator did not, however, directly rule on the Union's contention that the walkout did not violate the no-strike clause because it was caused by Respondent's breach of contract. The ar- bitrator further found that the employees were pro- tected by Section 502 of the Act in that they quit their work in good faith because of abnormally dangerous conditions for work. Tlhe arbitrator then ruled that the "union approv- al" clause must be read as "prior" approval. that 174 RICHMOND TANK CAR COMPANY Lamb did not give such approval, and that Rowell as shop steward could not give such approval. The arbitrator found that Rowell therefore subjected himself to immediate discharge under the contract by stopping work without approval of the Union. As to the profanity issue, Rowell testified before the arbitrator that he had told Sigley that "You do not know how to run the Plant and you are not worth a shit." Sigley testified, however, that he had heard Rowell tell him only that he was "no damned good" as either a man or a plant manager. The arbitrator found that Rowell's "abusive and derogatory" language could not be excused on "any theory," including the Union's contention that Rowell's speech was protected because of his role as steward. According to the arbitrator, Rowell's abusive language alone constituted a dischargeable offense under Respondent's plant rule 16. The arbitrator concluded that the work stoppage in which Rowell participated was protected by Section 502 but that Respondent was nevertheless contractually entitled to discharge Rowell either because he did not secure prior approval of the Union for the walkout or because of his abusive language. Testimony before the Administrative Law Judge established the same basic facts underlying the walkout as were found by the arbitrator. Addition- ally, the Administrative Law Judge found, on credibility grounds, that Rowell told Foreman Tom Cowsart he was going to shut the shop down because of unsafe working conditions. The effect of this remark, according to the Administrative Law Judge, was to inform Respondent that Rowell was leading the walkout. Rowell testified, as he had before the arbitrator, that he had told Sigley that Sigley was not "worth a shit." After the walkout Rowell and Lamb met with Sigley and other management personnel to review the employees' complaints. Respondent promised to repair the derailing system, make new switching arrangements with the railroad, and make other safety modifications such as providing additional mask filters. On June 23, 3 days after the walkout, Rowell inspected the changes, found them to be satisfactory, and reported to the em- ployees. They then took Lamb's advice and re- turned to work. Respondent's vice president, Welsch, then conducted an investigation and as a result discharged Rowell on July 21. Welsch testified on direct examination as to why Rowell, alone among all the striking employees, was discharged. The reasons advanced by Welsch were: (1) Rowell was in a "leadership position" as steward and "induced the employees to go out" without prior approval of the Union, and (2) Rowell used abusive and profane language against a supervisor in violation of a major plant rule. The Administrative Law Judge concluded that Rowell's stewardship was a "factor" in Welsch's decision to terminate him. The General Counsel and the Charging Party argued before the Administrative Law Judge that, while the arbitrator correctly found that the strike was protected by Section 502, he erred in finding contractual just cause in the lack of prior union ap- proval and for the abusive language. As to the latter, the General Counsel argued that Rowell's remarks were not extreme enough to render him unfit for further service. We find the arbitrator's decision repugnant to the purposes and policies of the Act for two rea- sons. First, the arbitrator, though he found the em- ployees' walkout protected under Section 502, failed to give this statutory protection precedence over the contractual violation he found as to the lack of prior union approval. Combustion Engineer- ing, Inc., 224 NLRB 542 (1976). Second, with re- spect to the independent ground for discharge based on Rowell's profanity, the arbitrator again proceeded to disregard the import of his Section 502 finding by failing to evalute Rowell's language as part of the res gestae of concerted protected ac- tivity. ' Since we will not defer to the arbitrator's award, we turn now to merits of the 8(a)(3) complaint. The threshold issue concerns the nature of the June 20, 1978, walkout by Rowell and the other employ- ees. In protesting the lack of adequate protection against both runaway freight cars and toxic fumes, the employees were clearly engaged in protected concerted activities under the Act. The singling out of the union steward for discipline because he led such activity would normally violate Section 8(a)(3) of the Act. N.L.R.B. v. Washington Alumi- num Co., 370 U.S. 9 (1962). Here the collective-bargaining agreement placed certain restrictions on the right of employees to ex- ercise their Section 7 rights through the tactic of a strike or work stoppage. If, however, Rowell and i See Firch Baking Company, 232 NLRB 72 (1977); American Telephone 8 Telegraph Co., 211 NLRB 782 (1974). It is true, as our dissenting colleague accurately documents. that the arbitrator analyzed relevant arbitration case law in addressing the issue as to whether Rowell was protected in his use of profanity by his status as the union steward. However, we note Member Hunter's apparent agree- ment with the Administrative Law Judge's characterization of the arbi- trator's decision as finding that "the remark, standing alone and regardless of whether the strike was protected, constituted legitimate, independent grounds for the discharge." (Emphasis supplied.) To the contrary, the ar- bitrator's decision, particularly his own conclusions, found in their entire- ty at the Administrative Law Judge's Decision ("Analysis and Conclu- sions") makes it quite clear that he neither recognized nor analyzed any relationship between his Sec 502 finding and his conclusion that Rowell's Xviolation of plant rule 16 alone justified his discharge 175 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his fellow employees quit their labor "in good faith because of abnormally dangerous conditions for work at the place of employment," that conduct, by the express terms of Section 502 of the Act, does not constitute a strike. Therefore, any disci- pline for an action deemed by Respondent to be a contractual violation of the no-strike clause would be a violation of Section 8(a)(1) if imposed on the rank-and-file employees and Section 8(a)(3) and (1) if imposed on a leader because of his union status as a steward. In applying an objective standard 2 we have no difficulty in characterizing the work conditions in this rail yard prior to the walkout as "abnormally dangerous" within the meaning of Section 502. Of course, work in and around railroad rolling stock is and always has been hazardous. Here the additional dangers of great bodily injury, easily curable through simple managerial and technological modi- fications as shown by Respondent's response to the walkout, converted a workplace that was normally dangerous to one that was abnormally so. Glen Welsch testifed that Rowell alone of the approximately 40 employees who joined the pro- tected walkout was disciplined because he "in- duced" the walkout through his "leadership posi- tion in the Union." This is a clear violation of Sec- tion 8(a)(3). : As to Respondent's second reason for the dis- charge, Rowell's profanity directed at Sigley, we find that the import of that outburst was not so egregious or flagrant so as to remove the protec- tion of the Act and warrant his discharge. The remark was provoked, as was the walkout itself, by Respondent's unresponsiveness to the employees' well-founded concerns about the safety conditions. The language chosen by Rowell, even in the ver- sion to which he himself testified, is commonly heard in the industrial workplace. The record shows, in fact, that in one instance virtually identi- cal language was directed at a supervisor by an- other employee without any similarly severe disci- pline being imposed. Finally, Rowell's verbal mis- conduct could hardly have been "so violent or of such serious nature as to render [him] unfit for fur- ther service" 4 since Respondent waited approxi- 2 The standard is whether the actual working conditions, shown to exist by competent evidence, might in the circumstances reasonably be considered abnormally dangerous, Redwing Carriers. Inc. and Rockana Carriers, Inc., 130 NLRB 1208, 120) (1961). See also Gateway Coal Co. v United Mine Workers of America, 414 U.S. 368, 386 (1974). :' We note, in this regard, that the Administrative Law Judge erred, in fn. 7 of his Decision, to the extent that he intended to draw a distinction between "merely joining" and "leading" protected activity with respect to an employer's right to discharge. The case relied on by the Adminis- trative Law Judge, Midwest Precision Castings Company, 244 NLRB 597 (1979), is inapposite since it dealt with an illegal job action. 4 he Berrcher Manufacturng Corporation, 76 NLRB 526, 527 (1948) mately I month before effecting the discharge. The record reveals no evidence of any problem with Rowell's continued employment during that period. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate fully the purposes of the Act. We shall order Respondent to reinstate James Rowell to his former job or, if such job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or other rights and privileges previously enjoyed, and we shall order Respondent to make Rowell whole for any loss of earnings he may have suffered because of the dis- crimination practiced against him by payment to him of a sum of money equal to that which he nor- mally would have earned from the date of the dis- crimination to the date Respondent offers him rein- statement, less his net earnings during that period. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corpora- tion, 231 NLRB 651 (1977). 5 Further, we shall order Respondent to expunge from its files any reference to the discharge of Rowell and to notify him in writing that this has been done and that evidence of this unlawful dis- charge will not be used as a basis for future person- nel action against him. 6 CONCLUSIONS OF LAW 1. Richmond Tank Car Company is an employer engaged in commerce in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 469, International Brotherhood of Boi- lermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The employee walkout of June 20, 1978, was not a strike within the meaning of Section 502 of the Act. 4. Respondent violated Section 8(a)(3) and (I) of the Act by discharging James Rowell on July 21, 1978. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- See, generally. Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). Sterling Sugars, Inc., 261 Nl RB 472 (1982). 176 RICHMOND TANK CAR COMPANY lations Boaird hereby orders thiat the Respondent, Richmond lank Car Company, Angleton, Texas, its officers, agents, ,saccussors, and assigns, shall: 1. Cease and desist from: (a) I)ischarging or otherwise discriminating against any employce for the purpose of discourag- ing employees from engaging in union activity. (b) In any like or related manner interfering with, restraining. or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer James Rowell immediate and full rein- statement to his former job or. if that job no longer exists, to a substantially equivalent position. with- out prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay which he may have incurred by reason of Respondent's discrimination against him in the manner described in the remedy section of this Decision. (b) Expunge from its files any reference to the discharge of James Rowvell, on July 21, 1978, and notify him in writing that this has been done and that evidence of this unlawfiul discharge will not be used as a basis for future personnel actions against him. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records. social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of hackpay dlue under the terms of this Order. (d) Post at its Angleton. I exas, facility copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 23. after being duly signed by Respondent's representative. shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 7 In the es'ci Ihl Ihis ()Ordcr is enlforred b) a Judgmenll of a United States C'ourt of Appeals. thr o rds in Ihc nolrice readirig "lPosted by Order of the Nation.1 I alhr RHela lilm Hthard" shiall riead "Posed Pursu- ant to a Jidgmenitt 1t the It 1111d Stillr C url o1r Appeals I nfoircing an Order of the Natle al I abor Rclatiorl nloard " MEMBFR HUNTER, dissenting: Unlike the majority, I would defer to the arbitra- tor's decision in this proceeding. Accordingly. con- sistent with the arbitrator's finding that James Rowell was discharged for "just cause," I would dismiss the complaint alleging that the discharge violated Section 8{a)(3) of the Act. The arbitrator upheld Rowell's discharge on two separate grounds. He found first that, although the work stoppage in which Rowell participated was protected by Section 502 of the Act, nonetheless Respondent was contractually entitled to discharge Rowell because the employees had not secured the Union's prior approval of the work stoppage. I agree with the majority that this portion of the ar- bitrator's decision is repugnant to the Act. Howev- er, the arbitrator found as a second independent reason for the discharge the profanity Rowell di- rected at Respondent's superintendent. My col- leagues find the arbitrator's decision on this point also repugnant to the Act. I disagree. In finding that the arbitrator's reliance on Rowell's abusive language is repugnant to the Act, my colleagues erroneously assert that the arbitrator failed "to evaluate Rowell's language as part of the res gestae of concerted protected activity." Ho \ev- er, as indicated in the Administrative Law Judge's Decision, and as set out in the arbitrator's decision, the arbitrator clearly considered the Union's claim that Rowell's profanity occurred in the context of activities protected by Section 7 of the Act and that, therefore, his profanity did not warrant his discharge. The arbitrator concluded, however, that "the Grievant's language in this case went beyond the limit of permissible conduct by an employee." even one "who is acting in the course of his duties as a Union representative."8 My crllcagues dispute the clear fact that tile arbitrator did consider the Union's claim that Rovells profanity occurred in the conlltet of oth- crusc protcterd ac itilr They do so hy reference to the arbitrator's "Conclusiolns" section. FIhe misleading Implicationi llthat hi se.c ioln coi1- tains the sumn and total implication oif the arbitrator', inomnlenis on this aspect of the case comipels me to sel out certain pertinent portions of iithli opinion to illustrate more clearly ".hat my colleagues are uiunilling tl accept At p II of his opirion. the arbitrator Ilndicated rhe Unlion als(r argued that the conversatioln look place at a liml. when the Grievant was in the process of a ssork stoIppage anld Ill ralrcads o Id his superriior Ihat he "Vas not go ing to sn ork. aim h ssas tal[ llig etl because oif nilsLife `sorkilng . ithlil ll Hs id lito d the I'l.lnlt Manager the same thing beftore rile r Iht dl.,pa;,ill Ig statements It contriended that tIhe uno men cre not speakring to crlc h other as employee and supervisor on the joh bhut rather th:m trlr Ciriesrnit vi s in the exercise tof his Section 7 right, to eigage in a work stroppage. and the two men sere not speaking Io eachl other a, emplhrsee and ,tupervisor. but rather as equals under the mandale ofI the law It maintained that when sleward, are engaged it the presen tation of grle.tances to supterision they are legally equ als to malnage- me.ll arid nay not bhe terminated for tIhe tse of profanle r deroga tort lanrguage. and therefore the Oirt.an;lit i;tlnot he disciplined fi.r ('lnt llrul'd 177 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, my colleagues are in error to the extent they make a finding offact that the arbitrator failed to consider Rowell's language within the context of his concerted protected activity. The arbitrator clearly did. And, to the extent that my colleagues' decision can be read as indicating disagreement with the arbitrator's conclusion, i.e., they do not agree that Rowell's comment warrants discharge when placed in the context of his protected activi- ty, they are clearly utilizing the wrong standard of review in evaluating an arbitrator's decision to de- termine if deferral is appropriate. Their standard is in effect a de novo review of the arbitrator's deci- sion. While this standard is applicable when the Board reviews decisions of its administrative law judges, it is totally out of place when the Board must consider whether or not to defer to an arbi- trator's decision. Such a standard, I believe, fails to recognize the basic nature and strength of the arbi- tration process and thus is counterproductive to the Board's expressely approved deferral policy in ac- cordance with Spielberg Manufacturing Company, 112 NLRB 1080 (1955). In this case, I would defer since I find that the arbitrator's conclusion that Rowell's discharge for profanity was for "good cause" under the contract is neither clearly repug- nant to the Act nor wholly at odds with existing Board precedent. Accordingly, I dissent from my colleagues' failure to defer to the arbitrator's deci- sion. strong language utilized during his discussion with the Plant Man- ager This Arbitrator has carefully considered the arguments and studied the cases cited by both parties. Then, inter alia, at p. 13. the arbitrator found, regarding the above ar- gument, that: As to the Union's contention that the Grievant's statement was "protected" because he was acting as a Union official rather than an employee, the common thread that runs through all the cases dis- cussed above, including those relied upon by the Union, is that the steward's statements may not be malicious, a verbal assault or per- sonally insulting and abusive of the supervisor. The Arbitrator con- cludes that the Grievant's language in this case went beyond the limit of permissible conduct by an employee who is acting in the course of his duties as a Union representative. In sum, it is found that the abusive and derogatory language used by the Grievant toward the Plant Manager cannot be excused on any theory, and standing alone, constitutes a dischargeable offense as defined in Major Rule 16 of the General Plant Policies and Rules. It was within the above context that the arbitrator entered his "Con- clusions" which the majority asserts indicate that he did not reference Rowell's language to his protected concerted activity. As the cited por- tions of the arbitrator's opinion show, however, my colleagues are mis- taken. APPENDIX NOTICE To EMPLOYEES PosrED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT discharge or otherwise dis- criminate against employees for the purpose of discouraging them from engaging in union ac- tivity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL offer James Rowell immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges previously en- joyed, and WE WILL make him whole for any loss of earnings suffered by reason of his un- lawful discharge, with interest. WE WILI. expunge from our files any refer- ence to the disciplinary discharge of James Rowell on July 21, 1978, and WE WIIL notify him in writing that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against him. RICHMOND TANK CAR COMPANY DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge: This case was heard before me at Angleton, Texas, on Sep- tember 26, 1979. The charge was filed by Local 469, In- ternational Brotherhood of Boilermakers, Iron Shipbuild- ers, Blacksmiths, Forgers & Helpers, AFL-CIO, herein called the Union, on January 19, 1979. The complaint was issued against Richmond Tank Car Company, herein called Respondent, alleging violations of Section 8(a)(l) and (3) of the National Labor Relations Act, as amend- ed, herein called the Act, by the discharge of its employ- ee J. E. Rowell on July 21, 1978.1 Respondent by answer denied any violations of the Act and moves to dismiss the instant matter on the grounds that the subject of the complaint has been disposed of by an arbitration All dates hereinafter are in 1978, unless otherwise specified. 178 RICHMOND TANK CAR COMPANY decision which issued on May 9, 1979. The General Counsel replies that the Board should not defer to the ar- bitration decision because the result is clearly repugnant to the Act and does not, therefore, meet one criteria for deferral announced by the Board in its Spielberg deci- sion.2 The General Counsel further contends that, even if deferral would otherwise be appropriate, statements by a representative of Respondent at the hearing before me reflect that Rowell was actually discharged for reasons prohibited by the Act and that a finding of a violation should be made by the Board irrespective of the results of the arbitration. Upon the entire record, including my observations of the witnesses, and after due considerations of the excel- lent briefs filed by the General Counsel, the Charging Party, and Respondent, I make the following: FINDIN(;S OF FACT I. JURISI)ICT ION Respondent is a Delaware corporation with its princi- pal office and place of business located in Houston, Texas. It maintains plants in Sheldon and Angleton, Texas, the latter of which is the only facility of Respond- ent involved herein. Respondent is engaged in the busi- ness of service and repair of railroad cars. During the 12 months preceding issuance of the complaint, Respondent in its course and conduct of business operations pur- chased and recieved at its Angleton, Texas, facility goods and materials valued in excess of $50,000 directly from points outside the State of Texas. The complaint al- leges, Respondent admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE IABOR OR ORGANIZATION INVOLVED The complaint alleges. the answer admits, and I find that the Union is, and has been at times material herein, a labor organization within the meaning of Section 2(5) of the Act. 1it. THI AlI.I:lt t) UNFAIR LABOR PRACTICES Respondent is engaged in the business of cleaning, re- pairing, painting, and sandblasting railroad cars, usually tank cars and hopper cars. Its Angelton, Texas, plant is connected by a railroad track to the freight yards of the Missouri Pacific Railroad. Cars which are to be cleaned or repaired are shunted over into Respondent's property where the tracks become 1, then 4, then 12 feeder lines to repair and cleaning areas where the cars are serviced. Respondent employs a switch engine operator to maneu- ver the cars among the tracks on its property and return them to the Missouri Pacific yard. The Union has represented Respondent's employees for about 18 years. It is undisputed that until the events of this case there have been no "derails" on Respond- ent's tracks. Derails are devices which are designed to, and are generally recognized as effective to, derail freight cars which may be loose in a railroad yard. In March 1978 Respondent, after an inspection and citation Spielberg .Ianufacturing Comnparny. 112 NLRB 1080 (1955) by a representative of OSHA, did have constructed "stops," as opposed to "derails." The stops would indis- putably be effective to hold rail cars once they ,were bought to a standstill. The effectiveness of the stops to halt or derail moving freight cars was disputed." On Thursday, June 15, a crew of Missouri Pacific em- ployees left open, on Missouri Pacific's property, the switch which allowed (or disallowed) cars to be pushed over to Respondent's property. Another Missouri Pacific crew, not knowing the switch was left open, pushed six cars which rolled into Respondent's yard. I he cars came down the track upon which Respondent's switchman was moving cars. lThe cars collided with the switch engine knocking the switchman from the cab. requiring his hospitalization for 10 days and a convalescence period of 7 weeks. There were no stops on the particular track involved. On Monday evening, June 19, about 30 of Respond- ent's 45 employees gathered at the home of Rowell who had been the union steward for about 8 years. Rowell denied that he had invited the employees there. but he did not testify that they were unexpected. Rowell testi- fied that the men collectively told him "they was either going to walk out on their own or I could invite them out. They wasn't working under them conditions, no more." Rowell telephoned Business Manager J. Frank Lamb to report the matter. Rowell denied telling Lamb that the employees were definitely on strike, but Lamb testified, ". . he told me here was a possibility that they would go out in the morning." According to Rowell, Lamb told him "to do whatever I thought was best to do, check the derail system the next morning and see if they were working." Lamb testified that he told Rowell to check to see if the stops were in place and "to do whateser the, felt like was necessary to be done." The next morning. according to Rowell, lie and safety committeeman John Cosenza walked out into the s. \itch- ing yard and found a set of stops "buried underneath the sand." They put the stops on the track, kicked them, and observed that they fell off, and. further according to Rowell, "I said. 'that's no good,' and we put it up there, twice. I told John to go to the cleaning rack, bring those men off the cleaning racks. I started back to repair." Rowell then started toward the repair area and mnet Foreman Tom Cosart. Cosart requested Rowell to serve as a substitute leadman for the remainder of the wcek. Rowell replied, according to his testimony, "I said that I didn't think he'd want [me] to be a leadman, after I told him what I was going [to do]. He said. 'wvhat are you going to do?' and I said. 'go out on unsafe working con- ditions."' Cosart testified: He [Rowell] and John Cosenza was standing there, at the stops; I asked him if he would be the leadman in the repair shop, being that H. A. Dudley was going to be on vacation for the rest of the week. and [he] replied that he didn't think that I wanted :f Al ,arious points the witnessec, referred tI the ",torp" as "derail," The context of Iheir tesimrnlon makes hk'ar ,.hich ipc of dcx.ic the5 were referring to 179 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him to be the leadman, because he was going to have to shut the shop down, on account of unsafe working conditions. I credit Cosart and find that Rowell told Cosart that, in effect, he was leading the strike. Although Cosart did insist on cross-examination that Rowell used the term "job" rather than "shop" when referring to the point from which Rowell announced that he was leading the strike, 1 find this an insufficient basis to discredit him. Cosart was a far more impressive witness and he had nothing to gain or lose by his testimony as he was, at the time of the hearing, no longer in the employment of Re- spondent. Moreover, the employees approached Rowell, their steward, as a leader in the situation; after telling the business manager there would probably be a strike the next morning, he was instructed by the business manager to perform the inspection of the stops and do according to Rowell, "whatever I thought was best." Further, ac- cording to Rowell's own testimony, it was he who in- structed Cosenza to get the employees away from the cleaning rack, which was their work area.4 (Also it is noteworthy that in the events described, infra, Rowell did, in fact, act as spokesman for the employees.) Ac- cordingly, I find that Rowell was, and told Cosart he was, the individual who was leading the employees out of the shop, or job, on the strike. C. W. Sigley, Respondent's superintendent (who was also referred to at various times during the hearing as plant manager), approached the group of employees who were leaving the repair area on their way to the parking lot, addressed Rowell and the following exchange oc- curred according to Rowell's testimony: A. Then, he asked me what the hell was going on, and I told him we was going out on unsafe work conditions. Q. Yes, sir. What else was said, if anything? A. And he asked me what did I have against him. I told him that I didn't have nothing against him- nothing personal against him, but everytime we would go to him with these unsafe working condi- tions, the only thing we could get out of him was nothing and he would fix it later. And, we couldn't get through to him that we had unsafe working conditions; we couldn't get through to the man, that we had unsafe working conditions. Q. Can you recall anything else that was said? A. Sir? Q. Can you recall anything else that was said? A. Yes, sir; I told him that he wasn't worth a shit and he wasn't no good as a plant manager. Rowell generalized that Sigley "was doing as much cuss- ing or more than I were . . ." but he could remember no words which Sigley had said. There were several em- ployees in the area as well as Cosart. According to the undisputed testimony of Sigley, Sigley attempted to get Rowell to come into the office; Rowell refused, demand- 4 Although Rowell denied saying anything to the employees in the repair area, his denials were equivocal and. in view of his instruction to Cosenza, inherently incredible. ing that Sigley call Lamb. Sigley refused to do so until he was told what the problem was. According to Sigley, Rowell would tell him nothing except to call Lamb. In testifying, Rowell claimed that the employees were also striking over the fact that in the cleaning area there were no filters, or insufficient filters, for the mask-type respirators the employees wore in cleaning tank cars and the oxygen bottle, used for emergencies, was not located close enough to employees who may be overcome by fumes when cleaning a tank car. Rowell did not testify that he mentioned the filters or the bottles in his conver- sation with Lamb the night before, and he admitted that he said nothing of the filters or oxygen bottles at any time during the first morning of the strike. Lamb was in his Houston, Texas, office when he was informed of the strike that morning by Jim Wilkerson, who was Respondent's chief of industrial relations at its office in Houston. 5 Lamb went to the plant where he first met with the employees and then proceeded to the office where, according to Sigley and Cosart, he dis- claimed any authorization of or responsibility for the strike. Lamb did not deny that he expressly disclaimed responsibility on the part of the Union, and I credit the testimony of Sigley and Cosart on this point. While in Respondent's office, Lamb spoke by telephone with Re- spondent's attorney, Daniel 0. Goforth, who told Lamb that he intended to seek an injunction if the strike were not stopped immediately. Lamb told the attorney to go ahead because he did not know if he could get the em- ployees back to work. Lamb did not try to get the employees to return to work. He returned to the employees and "told them to go ahead and go home" and he, Rowell, and Cosenza would meet with the Company. After lunch Rowell, Cosenza, and Lamb met with Sigley, Wilkerson, and other management personnel and reviewed the complaints of the employees. According to this record, this was the first that the management was told that the employees were complaining about the oxygen bottle and the lack of sufficient filters for the masks. The supervisors promised to correct the condi- tions and Lamb conveyed this promise to the employees when they appeared for work the following day at 6:30 a.m. According to Lamb the employees refused to accept the promises, and the strike continued. Respondent peti- tioned for an injunction against the strike, but no order issued. The parties reached agreement that Respondent would make certain repairs to the derailing system and take other measures necessary to satisfy the men. Re- spondent did, in fact, modify the stops and reached an agreement with the Missouri Pacific Railway that cars could be switched in the area only after Respondent's working hours. Respondent also secured additional filters for the masks and promised to construct a box which would hold the oxygen bottle in a readily accessible area. On June 23, Lamb, Rowell, and Cosenza inspected the modifications made and then reported to the employees who had gathered again at Rowell's home. Lamb then 5 Wilkerson did not testify. 180 RICHMOND TANK CAR COMPANY advised the employees that they should report to work that day, which all of them did. According to Lamb, he then called Wilkerson to report that the men were back at work and asked that no disciplinary action be taken against any of the employees. Wilkerson told Lamb that he would like to fire both Rowell and Cosenza but reinstate Rowell after about 10 days. Lamb replied that that would not work and, if Re- spondent did so, the Union would take the matter to ar- bitration. According to Glen Andrew Welsch, Respondent's ex- ecutive vice president, whose testimony is not contra- dicted on this point by Lamb, he and Lamb met the afternoon of June 23. Welsch testified that he told Lamb: [T]he company felt like the strike was in violation of the union contract and that we perhaps would have to take action against Mr. Rowell and Mr. Consenza, and also, perhaps, the other strikers that I was told about. I told him that before any action would be taken, that I would have a thorough in- vestigation conducted of the events, before, during, and immediately after the strike. Welsch and his attorney secured statements from var- ious management personnel who had knowledge of the events and circumstances surrounding the strike. On July 21, at the end of the workday, Rowell was summoned to Sigley's office where he was discharged by Sigley. Ac- cording to Rowell. when he asked for the reason, Sigley replied, "insubordination and leading the walkout." The Union filed a grievance over the discharge. The grievance was denied and was taken to arbitration. Relevant provisions of the contract, pursuant to which the grievance wvas filed, are a typical "just cause" for dis- charge clause, a requirement that "the Employer will make every reasonable effort to maintain safe working conditions"; a provision for employer rules of conduct; a binding grievance and arbitration clause; and the follow- ing no-strike provisions: a. It is agreed that the Union shall call no strike, or bring about a slowdown or work stoppage of any nature or conditions, during the life of this Agreement except for a violation of this Agree- ment. b. Further, it is understood that the Union, in acting as bargaining agent for the employees cov- ered by this Agreement, shall not be liable for any strikes, breach or other default under this Agree- ment, unless the Union has sanctioned such strikes or breach. c. In the event of any employee or employees stopping work without approval of the Union, such employees shall be subject to immediate discharge and replacement by other employees. The arbitration was held on January 27, 1979, before Harold A. Leeper, who issued his decision on May 9, 1979. The arbitrator considered whether the strike was protected by Section 502 of the Act because of "abnor- mally dangerous conditions for work." The arbitrator found that the conditions were abnormally dangerous at the time of the strike.6 The arbitrator then passed upon a contention by Respondent that prior approval of the strike was required by the contract, and Rowell as ste- ward, was not "the Union" for purposes of giving such approval. The arbitrator then addressed the issue of whether Lamb could have, and did, give such approval by his silence. The arbitrator found that prior approval for a strike was required under the contract: that Rowell himself could not give such prior approval: and that Lamb's action did not constitute the approval required by the contract. The arbitrator concluded, therefore, that Rowell's striking without prior approval of the Union subjected the employee to immediate discharge. The arbitrator then addressed the additional contention of Respondent that Rowell's remark to Sigley provided a legitimate basis for discharge under Respondent's em- ployee rule 16, which is contained in a company publica- tion entitled "General Plant Policies and Rules." Rule 16 is among a list of "major rule violations" which are des- ignated as offenses which will subject an employee to "immediate discharge without warning." Rule 16 prohib- its: "The use of or abusive language on the part of any employee toward another employee." The arbitrator found that: The abusive and derogatory language directed by the Grievant toward the Plant Manager on June 20 was not protected by his status as a Union repre- sentative, cannot be excused because of his age and service or because the Company had condoned use of profanity among people in the shop, and violated Major Rule 16, which justifies his discharge. In arriving at this conclusion the arbitrator expressly ad- dressed the Union's contention that, under Section 7 of the Act, stewards, when acting as stewards in a course of generally protected activity, act as an equal of man- agement and therefore cannot be disciplined "for the use of profane or derogatory language." The arbitrator noted in previous arbitration cases where profanity w as held not to be grounds of discipline or discharge, but was used solely for the purposes of questioning veracity or the purpose of strong advocacy, not personal attack or offense (or, if there was such attack, an apology had been made). After reviewing opposite authorities the ar- bitrator concluded that Rowell "went beyond the limit of permissible conduct by an employee who is acting in the course of his duties as a union representative." The arbitrator further discussed and rejected the Union's con- tention that other types of profanity used in a shop were similar to the personal attack by Roweli upon Sigley. Accordingly, the arbitrator denied the grievance on the grounds that Rowell had struck without prior approval of the Union and that he had engaged in the personal attack upon Sigley. At the hearing before me Executive Vice President Welsch testified that he made the decision to discharge 6 Having made this conclusion. the arbitrator found it unnecessary to pass upon a union contention that the 'trike w.as nol prohibited by the no-strike clause because that provision does not prohibit strike, caui.ed by employer breaches of the contract and the employer had breached the contract by failing to provide a safe workplace 181 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rowell after the investigation referred to above. He was asked on direct examination: Q. Based upon this investigation, what decision did you reach? A. With regard to Mr. Rowell, I felt like that the facts clearly indicated that he should be terminated. With regard to the other striking employees, I felt like that the company should take no action. Q. What-what distinguished, in your mind, Mr. Rowell from the other employees? A. Mr. Rowell was in a leadership position in the union. He took the-he induced the employees to go out on strike, without the prior approval of the union, and I had numerous or several pieces of evi- dence that suggested this. This was in direct viola- tion of the union contract-of language in the union contract, which states that if an employee goes out on strike, without the prior approval of the union, that he's subject to immediate termination. Also, I had evidence that showed that Mr. Rowell used profane and abusive language towards our Plant Manager in Angleton. This was in viola- tion of a major company rule. That, too, subjected him to termination. When I asked what he meant by the phrase "leadership position in the union," Welsch replied, "He was the union steward." Welsch was then lead by his counsel to deny that Rowell's position as steward had anything to do with his discharge. He was then given an opportunity to explain his reference to Rowell's position as steward. Welsch thereupon entered upon a convoluted answer which consumed about a half of a page and made no mention of stewardship. From this I conclude that Rowell's stewardship was, in fact, a factor in Welsch's decision to terminate Rowell. It is to be noted that at page 3 of the arbitration deci- sion the arbitrator recited that: Glen A. Welsch, Executive Vice President of the Company, testified that he investigated the griev- ance actions before and during the strike. After re- viewing the information secured by his attorney, he decided to terminate the grievance, because: (1) he felt the grievant, as a union steward, lead and in- duced employees to walk out, saying that severe problems caused danger ... ." Analysis and Conclusions The General Counsel and the Charging Party agree with the arbitrator's conclusion that the strike herein was protected by Section 502 of the Act, but they disagree with the arbitrator's holding that the strike was neverthe- less in violation of the contract because it was not ap- proved by the Union. The General Counsel and the Charging Party also contend that the ultimate decision reached by the arbitrator is repugnant to the Act because as stated in the General Counsel's brief, "Rowell's words were not so 'flagrant, violent, or extreme as to render the individual unfit for further service,' as found by the arbi- trator," citing Dreis & Krump Manufacturing, Inc., 221 NLRB 309, 315 (1975), enfd. 544 F.2d 320 (7th Cir. 1979). In Spielberg, at 1082, the Board deferred to an arbitra- tion decision because: . . .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 re- pugnant 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 recogni- tion of the arbitrator's award. The Board deferred to the arbitration decision and dis- missed the complaint. Spielberg also involved arbitration of discharges for alleged strike misconduct and, in reach- ing its decision to defer, the Board noted at 1082: This does not mean that the Board would necessar- ily decide the issue of the alleged strike misconduct as the arbitration panel did. We do not pass upon that issue. This means, simply stated, that the Board will not sub- stitute its judgment for that of the arbitrator in determin- ing the facts in dispute. The Kansas City Star Company, 236 NLRB 866 (1978). Another requirement for deferral is that the arbitrator must have considered the unfair labor practice issue and rule upon it. Raytheon Company, 140 NLRB 883 (1963); Suburban Motor Freight Inc., 247 NLRB 146 (1980). This requirement does not mean that all aspects of every theory of violation must be expressly delineated by the arbitrator and each conclusion articu- lated in style and substance as the Board would were it addressing the case de novo. Rather, the findings need only be, as stated in a case strikingly similar to the one sub judice, "complete and comprehensive and factually parallel to the alleged unfair labor practice." Atlantic Steel Company, 245 NLRB 814 (1979). In Atlantic Steel, the grievant engaged in cursing of a supervisor while in- formally discussing a grievance on the production floor. The arbitrator did not expressly state that the dischargee was not terminated for his protected activity, including presentation of the grievance, but did find that the dis- charge was effectuated solely because of the cursing. The Administrative Law Judge found that the arbitrator had not passed upon the unfair labor practice issue and therefore found the decision repugnant to the Act. He further found the decision repugnant to the Act because it was inconsistent with cases regarding cursing and in- sults in the context of grievance handling or contract ne- gotiations. The Board held that express consideration of all unfair labor practice theories was not required. It concluded (at 815): Rather, it is necessary only that the arbitrator has considered all of the evidence relevant to the unfair labor practice in reaching his or her decision. Here, the arbitrator was made aware of all elements of the alleged unfair labor practices (including Rowell's status as steward and alleged condonation). Indeed, he 182 RICHMOND TANK CAR COMPANY fully discussed all unfair labor practice theories advanced by the Union. Therefore, without more, deferral would be appropriate. However, I shall discuss additional fac- tors which make deferral appropriate. In Atlantic Steel, the Board found the arbitrator's con- clusion regarding cursing of the supervisor was not re- pugnant to the Act. In so doing the Board ruled (at 816- 817): The Administrative Law Judge cited no deci- sions. however, and we know of none, where the Board has held that an employee's use of obscenity to a supervisor on the production floor, following a question concerning working conditions, is protect- ed as would be a spontaneous outburst during the heat of a formal grievance proceeding or in con- tract negotiations. To the contrary, the Board and the courts have recognized (as did the Administra- tive I aws Judge in passing) that exen an employee who i,, engaged in concerted protected activity can. by opprobrious conduct. lose the protection of the Act, The decision as to whether the employee has crossed that line depends on several factors: (I1) the place of the discussion: (2) the subject matter of the discussion: (3) the nature of the employee's out- burst: and (4) w hether the outburst was, in any way. provoked by an employer's unfair labor prac- tice. To reach a decision, the Board or an arbitrator must carefully balance these various factors. The Board further found that the arbitrator considered all of these factors and concluded: We find nothing in the arbitrator's decision that is repugnant to the Act. Indeed, a contrary result in this case xxould mean that any employee's offhand complaint xwould he protected activity which would shield any obscene insubordinationl short of physical violence. That result would not be consistnet with the Act. Accordingly. we conclude that it will ef- fectuate the purposes of the Act to give conclusive effect to the grievance award, and. on that basis, we shall dismiss the complaint in its entirety. At minimum, it must be said that the arbitrator consid- ered all relevant factors surrounding Rowell's remarks, and his conclusion is precisely the same as that of the ar- bitrator, and the Board. in Atlantic Steel. Beyond the appropriateness of refusal to substitute its appraisal of the gravity of Rowell's remark for that of the arbitrator, the Board would similarly have found that Rowell had lost the protection of the Act. Rowell was not licensed to use the occasion to display his personal opinion of Sigley to his face, in the presence of another supervisor and other employees. If Respondent were re- quired to suffer Rowell's presence after this exhibition. the utility of Sigley as a supervisor would be totally un- dermined, and it would be he (if not Rowell) who would be rendered "unfit for further service." Sigley's stature as a man was not an issue; appraisal of his worthiness would not have affected the allegedly "abnormally dan- gerous working conditions." The remark was not a chal- lenge to his credibility stated in the heat of argument, or an offhand remark to other employees which was inad- vertently overheard by supervisors, or simply histrionics, as in the cases cited by the General Counsel. Therefore, assuming the strike was not rendered unprotected by the operation of a contractual provision that strikes have prior union approval, Rowell nevertheless exceeded the sphere of protection afforded by the Act. The General Counsel further argues that, assuming the remark by Rowell to Sigley was unprotected. Respond- ent bore the dual motivation of a desire to punish Rowell for his protected activity in striking. (This again assumes the protected nature of the strike.) The arbitrator's con- clusion section in its entirety states: CONCLUSIONS The Arbitrator concludes that: (1) The work stop- page on June 20, 1978, was protected by the Na- tional Labor Relations Act, as interpreted by the Supreme Court of the United States in Gateway Coal Company v. Mineworkers. 86 LRRM 2049. and the National Labor Relations Board in Union Boiler Company, 87 LRRM 1268. (2) The work stoppage did not have the prior approval of the Union: and the Grievant, by stopping work without such ap- proval, violated Part 4, Section 2 C of the Agree- ment, which justifies his discharge. (3) The abusive and derogatory language directed by the Grievant toward the Plant Manager on June 20 was not pro- tected by his status as a Union representative. cannot be excused because of his age and service or because the Company had condoned use of profan- ity among people in the shop, and violated Major Rule 16. which justifies his discharge. Inasmuch as two of the reasons relied on by the Company for effecting the discharge of the Griev- ant have been established by the evidence, and each of these was so serious as to justify discharge, it is further concluded that the discharge of the Griev- ant by the Company was for just cause, and should be affirmed. [Emphasis supplied.] Plainly the arbitrator found the remark, standing alone (and regardless of whether the strike was protected) con- stituted legitimate, independent grounds for the dis- charge. To upset the arbitrator's conclusion in this regard would again require the Board to substitute its ap- praisal of the facts for that of the arbitrator. Again, this is something swhich the Board will not do. Relying on Welsch's reference at the hearing on the complaint to Rowell's status as a union representative, the General Counsel further contends that Rowell was actually discharged because he was a steward rather than because of his strike activity. In advancing this argu- ment, the General Counsel relies upon Precision Castings Company Division of Aurora Corporation. a wholly owned subsidiary of Allied Products Corporation, 233 NLRB 183 (1977). In that case it was held that stewards who merely join an unlawful strike may not be singled out for disci- 183 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pline solely on the basis of their holding union office.7 However, the theory of Precision Castings cannot be said to protect Rowell's conduct because, as I have found he was a leader of the strike, not one who merely joined. Midwest Precision Castings Company, 244 NLRB 597 (1979). Finally, the General Counsel contends that because of the lapse of time, about 30 days, from the strike to the discharge, Respondent must be held to have condoned the strike. Condonation is a statutory theory and, al- though not expressly passed upon by the arbitrator, it is clear that his findings are "both complete and compre- Of o01' urse, if the strike s.¥as protected by Sec. 502 of the Act, no em- ployec. stevard or otherwise, could be lawfully discharged for merely joining it This is true regardless of the contract's "prior union approval" requirement as the statute supersedes any inconsistent contractual provi- sion. hensive and factually parallel to the unfair labor practice question." Atlantic Steel Company, supra. Therefore, again, deferral to the arbitration would be appropriate even for the condonation theory. However, it should also be noted that the cases cited by the General Counsel in support of the condonation theory recite that the em- ployers involved took employees back after unprotected strikes or strike misconduct without express reservation of the right to mete out discipline later. Here, on the afternoon the strike was terminated, Wilkerson and Welsch expressly told Lamb that Respondent intended to discipline Rowell. Thus, the distinction from the cases relied upon by the General Counsel is clear and I find that Respondent did not condone Rowell's conduct during the strike. [Recommended Order for dismissal omitted from pub- lication.] 184