Shimazaki Corp.

SHIMAZAKI CORP Shimazaki Corporation and George Condento. Case 22-CA-11625 13 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 17 September 1984 Administrative Law Judge Steven Davis issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed an answer- ing brief. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. DECISION STATEMENT OF THE CASE STEVEN DAVis, Administrative Law Judge. Pursuant to a charge filed on May 12, 1982, by George Condento, a complaint was issued by Region 22 of the National Labor Relations Board on April 10, 1984, against Shima- zaki Corp. (Respondent) The complaint, as amended at the hearing, alleges that Condento was suspended and discharged, in violation of Section 8(a)(1) and (3) of the Act, because he presented or attempted to present a grievance under the collective-bargaining agreement, and otherwise engaged in union and concerted activities. Respondent denies the material allegations of the com- plaint, and alleges, as an affirmative defense, that it should be dismissed because of an arbitration award, pur- suant to Olin Corp., 268 NLRB 573 (1984). The case was heard before me in Newark, New Jersey, on July 12, 1984. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, having its office and place of business in Port Newark, New Jersey, has been engaged in provid- ing a port service operation for imported motor vehicles and related services During the past 12 months, in the course of its business operations, Respondent provided services at the Port Newark facility valued in excess of $50,000 for American Honda Motor Co., Ltd., an enter- prise which is directly engaged in interstate or foreign 15 commerce Respondent admits and I find that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act, and that Local 1478-2, International Longshoremen's Association (the Union), is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Background Respondent is engaged in the business of transporting imported Honda vehicles at Port Newark. The vehicles arrive by ship, are unloaded by longshoremen, and are placed by them in certain storage areas. Respondent's employees drive the vehicles from the storage areas to certain shipping areas where they are loaded onto car carriers for transportation to automobile dealerships The employees involved herein, covered by a collective-bar- gaining agreement with the Union, are Respondent's drivers, who drive the cars between the storage and shipping areas, and the shuttle driver, who drives a van carrying 9 to 12 drivers, to the storage areas. Condento, a shuttle driver, transported the drivers to the storage area where the drivers then moved the cars to the ship- ping area. Condento then drove to the shipping area, picked up the drivers, and took them to the storage area where the process was repeated 2. The slowdown On April 12, 1982, Condento reported to Manager Rudy Locciola his suspicion that the drivers were engag- ing in a work slowdown and suggested that Lucciola ob- serve them. Later that day Lucciola observed the driv- ing speeds and number of trips made by Condento and the drivers.' Lucciola observed that Condento was driv- ing his van extremely slowly between the storage and shipping areas. Specifically, he saw the van pass 3 times during his 30- to 45-minute observation, whereas a one- way trip should only take 3 minutes. According to Luc- ciola, as a result of the slowdown, he assigned some 10 body shop employees to work overtime and transport the cars on each of the days involved On April 15, Condento was given an employee warn- ing report which essentially stated that on April 12, 13, and 14, Condento (a) drove the van excessively slowly, thereby slowing down the operation and (b) wasted time in the shipper's office The warning noted that Condento has an "irregular outlook" toward his work, and con- cluded that "should this persist he will be relieved of his position permanently." There is conflicting evidence as to whether Condento engaged in a deliberate slowdown: (a) As set forth above, Lucciola testified that he ob- served Condento driving the van extremely slowly on the days involved. 1 Lucciola made observations on 2 days April 12, and on either April 13 or April 14 274 NLRB No. 4 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Condento testified that he did not engage in a de- liberate slowdown and that he drove at normal speeds. However, he conceded that traffic was congested on April 12 through 14 and, as a result, he may have driven slower than usual. (c) Michael Smith, Respondent's attorney who repre- sented it at the arbitration of Condento's discharge, testi- fied at the instant hearing that at the arbitration, Con- dento admitted his participation in and the seriousness of the slowdown and also admitted that he knew that 10 additional employees were paid to complete the work. (d) In his opinion and award, the arbitrator stated that "at the hearing, the grievant admitted his participation in and the seriousness of the work slowdown " The arbitra- tor also stated that "the parties stipulated that he was in- volved in a three day work slowdown on April 12, 13 and 14, 1982, for which he received an employee warn- ing report." It is strange that Condento would alert his supervisor of a slowdown, invite him to observe the participants, and then himself engage in a slowdown knowing that his supervisor was watching However, based on Respond- ent's witnesses' testimony and the arbitrator's findings that an admission of a slowdown was made by Condento and the parties stipulated to that, I must find that Con- dento did, in fact, engage in a slowdown. I also note that Condento's testimony, as compared to that of Respond- ent's witnesses, was lacking. As to material aspects of the case, particularly what change of hours he was protest- ing, his testimony was wrong. I therefore do not credit his testimony where it conflicts with Respondent's wit- ness. The following day, April 16, a notice was posted by management in the shipper's office. The notice stated that, effective April 19, the quitting time would be 5 p.m. It had previously been 4:15 p in. The notice also stated that the lunch period was extended from 30 to 60 minutes The change was made because of the later after- noon and evening arrival of the trucks at the port. Ac- cordingly, Respondent's employees were needed later to locate and place in the shipping area any cars needed to complete a shipment 3. The shop steward incident On the day the notice was posted, April 16, Condento was in the shipper's office. Also present were Shop Steward Joseph Martino, and Shipping Foreman William Bastien and Supervisor Peter Martino. It is undisputed that Condento expressed his dissatis- faction with the new working hours and asked Steward Martino if Respondent was permitted to do this, and whether the Union could do anything about it.2 Steward Martino replied that Respondent could properly change the hours. Condento then began cursing him and Joseph Martino responded in kind, with the same obscenities The exchange, during which their voices were raised, lasted a few minutes and ended when Joseph Martino left the room 2 Joseph Martino testified that Condento asked him whether the change in hours violated the contract Condento testified that prior to this incident the driv- ers who rode on his van complained "constantly" to him of the change in hours since such change went into effect, which he estimated to be 2 to 5 weeks He also stated that the change, which he said occurred on April 15, involved a later starting time-from 7 to 8 a.m -but later corrected his testimony and stated that the change was later quitting time. I cannot accept Condento's testimony that the drivers complained to him about the change of hours, or that on April 16 he told Steward Martino that employees were unhappy with such change. First, inasmuch as the change was first announced on April 16, his coworkers could not have complained to him about the new hours for several weeks as he testifted.3 I similarly reject his testimony that his reason for approaching Martino on April 16 was to complain that his fellow workers were dissatisfied with the new hours It is clear, as testified by Respondent's witnesses, that Condento's discussion with Martino was precipitated by Condento's reading the notice posted on April 16 regarding the change. It is likely that if Condento had been listening to his cowork- ers' complaints for several weeks he would have con- fronted Martino earlier with this issue. It is just too coin- cidental that Condento chose April 16, the date the notice was posted, to speak to Martino about the change. I accordingly find that the employees' first awareness of the change took place on April 16 when the notice was posted and that Condento confronted Martino about the matter because he had read the notice 4 I find it unnecessary to decide whether, as testified by Condento, he told Martino that he wanted to file a "grievance" regarding the change in hours, for the rea- sons discussed infra. On leaving the shipper's office after the altercation with Condento, Joseph Martino told Manager Lucciola what happened, and reported that Condento complained about the change in hours and questioned whether Re- spondent could change the hours. Supervisor Peter Mar- tino reported the same incident to Lucciola. Lucciola conceded that, as a result of his conversations with the Martinos concerning the incident, he suspended Con- dento The suspension letter, signed by Lucciola, and given to Condento on April 19, stated. On the afternoon of April 16, 1982 Mr George Condento did with total disrespect and disregards for both the age and position (shop steward) held by Mr. Joseph Martino, degrade and verbally abuse Mr. Martino as was witnessed by their peers. This was brought about by Mr. Condento's dissatisfac- tion of policy changes within the company. Mr. Condento is a foreman and should act as such, not a manager, nor a mediator or shop steward. He has 3 Although two drivers testified on behalf of the General Counsel, they were not asked any questions concerning the change in hours or whether they complained to Condento about the new hours 4 Respondent Attorney Smith testified that at the arbitration hearing Condento testified that he complained to Steward Martino after he read the notice regarding the change in hours As set forth above, I have re- jected Condento's testimony that he did not see the notice SHIMAZAKI CORP succeeded in creating a problem in which he is the source. Decision. Beginning April 20, 1982 Two day suspension, after which notification will be given as to whether he will be allowed to contin- ue work here and in what capacity. That decision will be final. Should Mr Condento be allowed to continue working, any infraction of rules and regulations whatsoever, will result in immediate dismissal. At the instant hearing, when asked to explain his phrase that Condento should not act as a manager, medi- ator, or shop steward, Lucciola testified that he meant that his job is that of a foreman of the drivers and "if he is to submit a grievance, it is to be submitted correctly." When the suspension was given to Condento, Lucciola had decided to fire Condento because of his prior work record, including the latest April 16 argument with Steward Martino.5 At the time Lucciola decided to sus- pend and discharge Condento, he was unaware that Con- dento had attempted to file a "grievance" with Steward Martino but, of course, he possessed knowledge of Con- dento's questioning as to whether the change in hours was permitted by the contract. On April 21, 1982, Lucciola, who had by then decided to discharge Condento, believed that he needed verifica- tion from the occupants of Condento's van that he (Con- dento) engaged in a slowdown. He asked General Fore- man and admitted Supervisor Peter Martino to interview Condento's passengers. Martino did so and reported to Lucciola that the drivers-passengers stated that it was Condento and not them who had slowed down. Lucciola typed a statement which 8 men signed, which stated in effect that Condento drove the van on the 3 days at issue "extremely slow," and engaged in a "slowdown," requir- ing the overtime work of 10 extra men on each day "to complete a normal days work " The statement added that the drivers drove as they normally did. One of the signatories, Luis Fuentes, did not work on the 3 days involved. Two other drivers who signed the statement, Jose Del Rio and Haskar Worthy, testified at the instant hearing. Del Rio stated that when questioned by Peter Martino and Joseph Martino, the shop steward, he and the other drivers denied engaging in a slowdown They were then asked to sign the statement if the slow- down was Condento's fault and were told that they would be disciplined if they did not sign. Del Rio stated that Condento was driving a little slowly, but according to the traffic, which was slightly congested. Del Rio denied knowing whether Condento drove slowly in order to waste time. Worthy testified that it was his belief that if he did not sign the statement he would thereby be agreeing with Condento-that the drivers 5 Condento's work record, which was placed in evidence at the arbi- tration hearing , included a letter of reinstatement dated July 9, 1979, after a discharge, with a note that "if at any further time we have any problem whatsoever, concerning Condento, he will be terminated imme- diately with no further consideration," and six warning letters from 1980- 1982 concerning such infractions as (a) unauthorized leaving of work, (b) hitting and damaging cars with his van (c) unauthorized reassignment of an employee, and (d) bringing drivers to punch out at 3 15 instead of 3 30 17 caused the slowdown and, since Worthy did not engage in a slowdown, he signed the statement. Worthy further stated that he was not aware of any intentional slow- down or wasting of time on April 12 through 14, and that Condento's driving on those days was as usual After the signatures were obtained, Lucciola wrote a statement on the bottom of the sheet that "in view of the above, Mr. Condento is hereby relieved of his position as foreman and discharged." 4 The arbitration Condento grieved his discharge, and an arbitration hearing was held on October 14, 1982 Condento was represented by an attorney from the Union. The issue, as framed by the arbitrator, was whether Condento's dis- charge was for just cause under the terms of the con- tract. The arbitrator found that Condento was "dis- charged for the cumulated effect of his infractions which included the work slowdown and the argument with his shop steward " The arbitrator found that (a) Condento had been "repeatedly (and often) warned that his behav- ior failed to meet acceptable standards, that he broke company rules, regulations and policies, and that he was a disruption within the Company organization." (b) At the arbitration hearing Condento "admitted his participa- tion in and the seriousness of the work slowdown." (c) Condento "blew up" at the shop steward, discrediting his testimony that he did not "blow up." (d) The shop steward incident "when taken with a prior record of be- havioral warnings . . gave the company cause for disci- pline." The arbitrator stated that- No company need tolerate nor accept conduct which is improper, violative of reasonable rules, and disruptive to the organization. It is unreasonable to require a company to continue the employ of a worker who performed as Mr Condento has. The arbitrator concluded that Condento's discharge was (a) for just cause under the contract and (b) reasona- ble under the circumstances Joseph Martino was not disciplined for his part in the altercation with Condento, and Lucciola conceded that he never disciplined anyone for using abusive language Ill. ANALYSIS AND DISCUSSION Deferral to Arbitration In Ohn Corp., 268 NLRB 573 (1984), the Board adopt- ed a new standard for implementing its Spielbergs policy of deferring unfair labor practice proceedings to arbitra- tors' decisions that are asserted to have resolved issues subsequently presented to the Board The Spielberg standards were reaffirmed. These require, for deferral, that the arbitral proceedings appear to have been fair and regular, all parties have agreed to be bound, and the de- cision of the arbitrator is not clearly repugnant to the purposes and policies of the Act. The new standard re- jected both Suburban Motor Freight, 247 NLRB 146 p in 6 Spielberg Mfg Co, 112 NLRB 1080 (1955) 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1980), and Propoco, Inc., 263 NLRB 136 (1982). In the interpretation the Board majorities in those cases placed a further requirement for deferral, first enunciated in Raytheon Co., 140 NLRB 883 (1963), that the arbitrator consider the unfair labor practice issue. Under the new standard, the Board will find that an arbitrator has adequately considered the unfair labor practice if (a) the contractual issue is factually parallel to the unfair labor practice issue, and (b) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. To the extent the contractual and statutory standards of review of the unfair labor practice issue differ, they should be weighed by the Board in considering whether the arbitration award com- ports with the Speilberg requirement that it not be clearly repugnant to the Act, a standard requiring that the award be "palpably wrong" or not susceptible to an in- terpretation consistent with the Act. Furthermore, the Board in Olin now placed on the party seeking to have the Board ignore the determination of an abitrator, the burden of demonstrating the defects in the arbitral proc- ess or award, expressly overruling Suburban Motor Freight, supra, to the extent that it provided for a differ- ent allocation of burdens in deferral cases The General Counsel argues that the deferral is not appropriate because (a) the arbitrator did not adequately consider the unfair labor practice issue and (b) the arbi- tration decision is clearly repugnant to the Act. As to the first issue, the General Counsel asserts that the arbitrator did not consider whether (a) Condento was engaged in protected concerted activity during his con- versation with Steward Martino and, if so, whether his conduct was so outrageous that he would forfeit his pro- tected status, (b) Condento was disciplined for his union or concerted activity of attempting to file a grievance, (c) Respondent condoned abusive language by employ- ees, or (d) the drivers' signatures on the statement accus- ing Condento of the slowdown were voluntarily ob- tained. The answer to these arguments is, and I find, that pursuant to Olin, the arbitrator adequately considered the unfair labor practice because the contractual issue is fac- tually parallel to the unfair labor practice issue and the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. The factual ques- tion presented to the arbitrator was coextensive with the issues that would be considered by the Board in a deci- sion on the statutory question-whether Condento was properly suspended and discharged for the incident with the shop steward.? Respondent and the General Counsel are in agreement that the moving force behind the sus- pension and discharge was the Condento-Steward argu- ment. Of course, Respondent asserts that Condento over- stepped his bounds in "degrading and verbally abusing" the steward, while the General Counsel alleges that this argument was caused by Condento's unsuccessful at- tempt to persuade Martino to take action against Re- spondent for the change in the work hours, and Con- dento was thereby disciplined for his attempt to file a grievance. Thus a very clear and identical issue was ad- I The arbitrator's consideration of Condento's prior work record in reaching his decision does not detract from this finding dressed by the arbitrator-the propriety and legality of Condento's discussion with the shop steward." It also appears that the arbitrator was presented gener- ally with the facts relevant to resolving the statutory question-the unfair labor practice The facts involving the steward incident were before the arbitrator.9 While it is true that the arbitrator did not discuss the issue of Re- spondent's condonation of abusive language in his opin- ion, nevertheless, because the arbitrator "did hear the facts on the issue [of the steward incident his] decision effectively, although not explicitly, did decide the issue." Chemical Leaman Tank Lines, 270 NLRB 1219 at fn. 3 (1984). Furthermore, it was unnecessary for the arbitra- tor to consider work slowdown inasmuch as the arbitra- tor referred several times in his opinion that Condento admitted engaging in the slowdown and that the parties had stipulated to that fact. As to the second issue, it is also clear that the arbitra- tor's award is not clearly repugnant to the purposes and policies of the Act. Even assuming, arguendo, that Con- dento was engaged in protected concerted activity by virtue of his discussion with his shop steward, the arbi- trator, after hearing all of the evidence, decided that Re- spondent was justified in its discharge of Condento be- cause of his prior work record and the incident with Steward Martino. It has been held that an employer may properly discharge an employee for obscene, profane re- marks directed to another employee, notwithstanding that such language was routinely used in the shop and had been tolerated by management. Veeder-Root Co., 192 NLRB 973, 979, 980 (1981). See also NLRB v. Clark Manor Nursing Home Corp., 671 F.2d 657, 662-663 (1st Cir. 1982). Accordingly, I find that there is no evidence that the statutory and contractual issues are factually dissimilar or that facts generally relevant to the unfair labor practice issue were absent from the record made before the arbi- trator. Additionally, the General Counsel has failed to 8 Condento engaged in protected concerted activities by asking wheth- er (a) the change of hours was permitted by the contract, (b) Respondent could take such action, and (c) the Union could do something about it Such conduct, even taken alone, as I find Condento did, is concerted Here, Condento questioned whether he was required to work until 5 p in -the new hours As the Supreme Court has stated As long as the employee's statement or action is based on a reasona- ble and honest belief that he is being, or has been, asked to perform a task that he is not required to perform under his collective-bargain- ing agreement, and the statement or action is reasonably directed toward the enforcement of a collectively bargained right, there is no justification for overturning the Board's judgment that the employee is engaged in concerted activity, just as he would have had he filed a formal grievance [NLRB v City Disposal Systems, Inc, 104 S Ct 1505 (1984)] It is unnecessary to make a finding as to whether Condento said he wanted to file a "grievance " "as long as the nature of the employee's complaint is reasonably clear to the person to whom it is communicat- ed. .." City Disposal, supra I accordingly find and conclude that Con- dento was engaged in protected concerted activity in his inquiry to Stew- ard Martino about the change of hours See also Interboro Contractors, 157 NLRB 1295 (1966), enfd 388 F 2d 495 (2d Cir 1967) 9 I cannot credit Condento's testimony that the only issue before the arbitrator was that profanities he used or that his full conversation with the steward was not related to the arbitrator It makes no sense that only the obscenities were testified to Moreover, Respondent's witnesses Joseph Martino and Smith testified that the full conversation between Condento and the steward was testified to at the arbitration hearing SHIMA'ZAKI .CORP 19 show that the arbitrator's, award is clearly repugnant to On these findings of fact and conclusions of law and the Act, i.e., that the -arbitrator's decision is not suscepti - on the entire record , I issue the following recommend- ble to an interpretation , consistent with the Act. ed I o Thus, I shall defer to• the grievance arbitration award and recommend dismissal ,of 'the complaint ORDER CONCLUSIONS OF LAW 1 Respondent Shimazaki Corp. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2. Deferral to the arbitrator's award is appropriate. 3. Respondent has not engaged in the violations of the Act as alleged in the complaint. The complaint is dismissed in its entirety 10 If no exceptions are filed as provided by Sec 102 .46 of the Board's Rules and Regulations , the findings , conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses