Martin Redi-Mix, Inc.

MARTIN REDI-MIX Martin Redi-Mix, Inc. and Teamsters Local Union No. 580, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 7-CA-18563 28 February 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 31 March 1982 Administrative Law Judge John H. West issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. On 27 February 1984 the Board issued an order re- manding the proceeding to the judge for consider- ation and preparation of a supplemental decision in light of its decision in Olin Corp., 268 NLRB 573 (1984), and Meyers Industries, 268 NLRB 493 (1984). On 18 May 1984 Administrative Law Judge John H. West issued the attached supplemental de- cision. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief. The Board has considered the decision, the sup- plemental decision, and the record in light of all the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Supplemental De- cision and Order. The judge found that the instant case is not sub- ject to deferral to the arbitration award under Olin Corp., supra, because the arbitrator was not pre- sented with the facts relevant to resolving the unfair labor practice issue and failed to treat the contractual issue. The judge further found that the arbitration award was palpably wrong. The Re- spondent excepts to judge's failure to defer to the arbitration award which found that, on 23 June 1980, employee Arwood actually quit his employ- ment rather than drive his assigned truck, which he claimed was too noisy and hurt his ears. In support of its exceptions, the Respondent submits that the judge refused to defer to the arbitration award be- cause he merely disagreed with the arbitrator's fac- tual findings. The Respondent also asserts that the General Counsel did not meet his burden of proof that deferral is not warranted in this case. For the reasons set forth below, we find merit in the Re- spondent's contentions. In Olin Corp., the Board reaffirmed its commit- ment to the standards set forth in Spielberg Mfg. Co.,' which held that the Board would defer to an ' 112 NLRB 1080 (1955) 559 arbitration award where the proceedings appear to have been fair and regular, all parties have agreed to be bound, and the decision of the arbitrator is not clearly repugnant to the purposes and policies of the Act. In addition, the Board majority also clarified its position with respect to the Raytheon Co.2 requirement that the arbitrator must have con- sidered the unfair labor practice issue. Under the revised standard, an arbitrator has adequately con- sidered the unfair labor practice issue if the con- tractual issue is factually parallel to the unfair labor practice issue, and the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. With regard to the inquiry into the "clearly repugnant" standard, Olin does not require an arbitrator's award to be totally con- sistent with Board precedent. Under Olin, the Board will defer unless the award is "palpably wrong," i.e., unless the arbitrator's decision is not susceptible to an interpretation consistent with the Act. The burden is on the party opposing deferral to affirmatively demonstrate the defects in the arbi- tral process or award. The General Counsel asserts that deferral is inap- propriate because (1) the arbitrator failed to treat the contractual issues as factually parallel to the unfair labor practice issues in this case; (2) the arbi- trator was not presented with the facts relevant to resolving the unfair labor practice or the contrac- tual issues; and (3) the arbitrator's ultimate finding of a voluntary quit by employee Arwood is palpa- bly wrong. The only evidence relied on by the General Counsel in support of his position was the arbitrator's decision itself. We find, contrary to the judge, that the arbitra- tion award satisfies the requirements of Olin and that the General Counsel failed to satisfy his burden of proof espoused by Olin. As admitted by the General Counsel, the statutory and contractual issues in this case were factually parallel. Contrary to the General Counsel's implication, Olin does not require the arbitrator to make a specific finding that the issues are parallel. The factual questions before the arbitrator were coextensive with those that would be considered by the Board in a deci- sion on the statutory issues. These factual questions were what prompted employee Arwood's depar- ture from the jobsite on the day in question; what occurred during the conversation between Arwood and his supervisor shortly before his departure from work that day; whether Arwood's departure from work that day constituted a voluntary quit on his part; whether Arwood was discharged and for 2 140 NLRB 883 (1963) 274 NLRB No. 79 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what reasons. In fact, the judge treated these factu- al questions in resolving the statutory issues. The General Counsel also failed to show that facts generally relevant to the unfair labor practice were absent from the record made before the arbi- trator. The General Counsel and the judge incor- rectly relied solely on the arbitrator's decision itself to show what evidence was submitted to the arbi- trator. With Olin's placement of an affirmative burden of proof on the party opposing deferral, we have indicated that the arbitrator's factual findings are not equivalent to what record evidence actually was submitted to the arbitrator. Thus, it is not nec- essary for the arbitrator to recite evidence in a written decision. Rather, the party seeking to avoid deferral must establish that the facts generally rele- vant to the unfair labor practice were not present- ed to the arbitrator at some time during the pro- ceeding. The General Counsel's introduction of the award is insufficient to meet this burden. If any- thing, the arbitrator's decision here tends to show that the arbitrator was presented with essentially the same evidence necessary for determination of the unfair labor practice charge. This evidence in- cluded the contract provisions granting employees the right to refuse to drive unsafe equipment under certain conditions, the medical condition of Ar- wood's hearing, his refusal to wear ear defenders prescribed by his physician, the condition of the company truck to which Arwood was assigned, the circumstances surrounding his departure from work the day in question, and the events leading to the termination of his employment. The General Counsel observes that the arbitrator stated in his decision that Arwood never offered to return to work after the 23 June 1980 confronta- tion, while the uncontradicted record evidence in the unfair labor practice case indicated that on 25 June 1980 Arwood did unconditionally express his desire to return to work and he was not allowed to do so. The General Counsel therefore urges us to abstain from deferring to the arbitration award be- cause a more complete factual record may have re- sulted in an opposite conclusion. The Board is not prepared to engage in conjec- ture as to which way an arbitrator's decision may have shifted had certain additionally allegedly rele- vant facts come to light. In fact, that is not even our province, for the "Board's involvement is not in the nature of an appeal by trial de novo."3 Our role is to ascertain whether the arbitrator was pre- sented generally with the relevant facts necessary to consider the unfair labor practice. We are satis- fied that this arbitrator was presented generally 3 Badger Meter, Inc, 272 NLRB 824, 826 (1984) with those facts, which is exactly what Olin re- quires. The General Counsel's argument on this point amounts to a request that the Board substitute the judge's findings on this matter, which are arguably more favorable to the General Counsel's position and which are at odds with those of the arbitrator. In Olin, we stated clearly that we will not permit the party opposing deferral to pick and choose be- tween the judge's and arbitrator's factual findings. Additionally, the General Counsel has failed to show that the arbitration award is clearly repug- nant to the Act. Both the General Counsel and the judge have mistaken the Board's role in this matter. Because the General Counsel and the judge would have decided the contractual issues in this case dif- ferently than the arbitrator did, they have ad- vanced that deferral is inappropriate. The Board's review under Olin does not contemplate that the Board will substitute its judgment for that of the arbitrator in resolving contractual issues. Rather, we will inquire only whether the arbitrator ade- quately considered the unfair labor practice issues which, in this case, we have concluded was satis- factorily done. Accordingly, we shall defer to the grievance ar- bitration award and dismiss the complaint in its en- tirety.4 ORDER The complaint is dismissed. 4 In light of our decision to defer to the arbitration award, we deem it unnecessary to rule on the merits of the 8(a)(1) allegation SUPPLEMENTAL DECISION JOHN H WEST, Administrative Law Judge . In my de- cision in this proceeding, issued March 31, 1982, it was concluded, as here pertinent , that "[i]nasmuch as the ar- bitrator did not rule on the unfair labor practice issue, Respondent's . . . request for deferral must be denied. Suburban Motor Freight , 247 NLRB 146 ( 1980)." By Order dated February 27, 1984 , the National Labor Relations Board (the Board) remanded the proceeding indicating that Respondent filed exceptions and a sup- porting brief (May 14, 1982) and the General Counsel filed an answering brief (May 25, 1982); that on January 6 and 19, 1984, it issued its decisions in Meyers Industries, 268 NLRB 493 and Olin Corp., 268 NLRB 573 ( 1984), respectively; and that, in light of these Board decisions, a supplemental decision should be prepared herein and served on the parties. By Order dated March 23, 1984, the parties were invit- ed to submit position statements regarding the above-de- scribed Board decisions and the United States Supreme Court's decision in NLRB v. City Disposal Systems, 104 S.Ct. 1505 (1984), which adopted by a 5 to 4 decision the MARTIN REDI-MIX Board 's rationale ' expressed in Interboro Contractor, 157 NLRB 1295 ( 1966), enfd . 388 F.2d 495 (2d Cir. 1967), which rationale is described below Both the General Counsel and Respondent correctly point out in their position statements that Meyers Indus- tries, supra, does not apply to the instant proceeding since here, as in City Disposal Systems, supra, there is a labor agreement and the Board in Meyers Industries, supra, distinguished that case from a situation where a collective-bargaining agreement exists. A majority of the Board in Olin Corp., supra, conclud- ed that it would require the party seeking to have the Board reject deferral and consider the merits of a given case show that specified standards for deferral, treated infra, have not been met . As indicated by the Board, the party seeking to have the Board ignore the determination of an arbitrator has the burden of affirmatively demon- strating the defects in the arbitral process or award To the extent that Suburban Motor Freight, supra, provided for a different allocation of burdens in deferral cases, it was overruled. Regarding the aforementioned standards , the Board' stated in Olin Corp, supra at 574: Accordingly, we adopt the following standard for deferral to arbitration awards. We would find that an arbitrator has adequately considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor prac- tice.6 In this respect, differences, if any, between the contractual and statutory standards of review should be weighed by the Board as part of its deter- mination under the Spielberg [Mfg. Co., 112 NLRB 1080 (1955)] standards of whether an award is "clearly repugnant" to the Act And, with regard to the inquiry into the "clearly repugnant" standard, we would not require an arbitrator's award to be totally consistent with Board precedent Unless the award is "palpably wrong,"7 i e., unless the arbitra- tor's decision is not susceptible to an interpretation consistent with the Act, we will defer. 6 This approach is supported by Board precedent See, e g , Kansas City Star Co, 236 NLRB 866 (1978), Atlantic Steel Co, 245 NLRB 814 (1979) 7 International Harvester Co, 138 NLRB 923, 929 (1962), affd sub nom Ramsey v NLRB, 327 F 2d 784 (7th Or 1964), cert denied 377 U S 1003 (1964), quoted in Member Penello 's dissent- ing opinion in Douglas Aircraft Co, 234 NLRB 578, 581 ( 1978), enf denied 609 F 2d 352 (9th Cur 1979) In her position statement , the General Counsel argues that the instant case is not subject to deferral under Olin Corp., supra for: While the contractual issue should have been fac- tually parallel to the unfair labor practice issue in the instant case, the arbitrator failed to treat it as such and, further, was not presented with the facts relevant to resolving the unfair labor practice. As a result, the arbitrator's decision is palpably wrong. There was no record testimony as to the arbitration 561 proceeding and, therefore, the only evidence as to the facts presented to and considered by the arbitra- tor is the decision itself The arbitrator addressed solely the issue of whether [the alleged discrimina- tee Robert] Arwood voluntarily quit and that was done in a vacuum without any reference to the rele- vant contract provision which allows employees to refuse to drive unsafe trucks . In addition , in consid- ering the issue of a voluntary quit, the arbitrator did not have certain crucial facts before him as revealed by the record testimony in the instant case. While the arbitrator stated in his decision that Arwood never offered to return to work after June 23, [1980], the uncontradicted record evidence in the instant case indicated that on June 25 [1980] Arwood unconditionally expressed his desire to return to work and he was not allowed to do so. The arbitrator relied heavily in his finding of a vol- untary quit on Arwood's supposed failure to offer to return to work where an accurate factual record may have resulted in an opposite conclusion. The fact that Arwood discontinued wearing ear defend- ers was mentioned by the arbitrator without any in- dication that he was presented with the reason for the discontinuance [The reason was given in the record made herein ], a fact which may have influ- enced the arbitrator's decision and is an important fact in determining Arwood's reasonableness in the context of the unfair labor practice issue The arbitrator's decision and finding of a volun- tary quit must be considered palpably wrong. The arbitrator ignored the contractual provision which allowed Arwood to refuse to drive a truck he rea- sonably considered to be unsafe. The arbitrator al- lowed the Respondent to convert Arwood's refusal to drive pursuant to that contract provision to a voluntary quit merely by stating that if he refused to drive the truck he would be considered a volun- tary quit Clearly, such an approach would subvert the intent of such a contract clause and the applica- tion of the Interboro doctrine.' It is Respondent's position that under Olin Corporation, supra, the instant case must be dismissed for assertedly this case was fully and fairly arbitrated under the in- volved agreement and the arbitrator found the involved truckdriver's termination to be a voluntary quit. Re- spondent contends that since the arbitrator's decision is not clearly repugnant to the purposes of the Act, defer- ral is proper in this case In the alternative, Respondent takes the following po- sitions: 1 As pointed out by the Supreme Court in City Disposal Systems, supra, the Board's interboro doctrine recognizes as concerted activity an individ- ual employee's reasonable and honest invocation of a right provided for in his collective-bargaining agreement There , as here, a truckdriver re- fused to drive a specific truck and there was a collective -bargaining agreement with a clause providing for the right to refuse to drive an unsafe truck There the Supreme Court accepted the Board 's conclusion that the truckdriver was engaged in concerted activity 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Even if this case is not deferred, however, the Respondent had not violated . . . [section] 8(a)(1) of the Act. The Supreme Court's decision in City Disposal established that an employee's "honest and reasonable invocation of a collectively bargained for right constitutes concerted activity." Arwood's refusal to utilize the safety device his doctors indi- cated he should use, and his failure to use the pro- cedures contained in the labor agreement for resolv- ing safety matters is clear evidence that Arwood was not asserting a claim under the contract when he refused to drive Truck 47. Thus, Arwood's ac- tivity was not an honest or reasonable invocation of the labor agreement to protest a collective safety matter, but an individual refusal aimed at obtaining his own objective. Finally, in City Disposal, the Court held that while the refusal to work based upon a provision in a labor agreement may constitute concerted activi- ty, such activity is not protected if the labor agree- ment `limits the methods' by which an employee may raise his contract rights. The labor agreement involved in this case clearly limited the methods by which Arwood could assert his right to refuse to operate equipment in an unsafe condition. Arwood violated these provisions of the labor agreement when he refused to drive Truck 47, and his actions were thus unprotected under the Act. In my opinion, deference should not be accorded to the arbitrator's award in the instant proceeding. The ar- bitrator concluded that the involved employee voluntariy quit a job he held for 23 years during a confrontation he had with the 23-year old son of the owner of the Com- pany, Grant Martin. The evidence in this record demon- strates that the arbitrator could not have had certain de- terminative facts before him and, therefore, the record which was developed before the arbitrator was inad- equate for resolving the unfair labor practice Portions of the arbitrator's analysis are as follows: He [the truckdriver] said it [the truck] was noisy and bothered his ears. Yet his own Doctor's letter [U. Exh. 2] states that while he has a hearing loss, high frequency in nature, that he could drive and wear ear defenders. The record indicated that he had earlier warn [sic] ear muffs for a period of one month or so and discontinued using the ear protec- tion. The record demonstrated that the grievant did not report back to his employer for work at any- time since June 23rd. He did stop in on June 25 or thereabouts for his paycheck but did not offer to go to work Realistically, the grievant's job with his employer was to drive #47 which he had done for fifteen years. From June 23rd to date he had not offered to do so Other avenues under the contract were avail- able to him, if he wished to protest why he would not drive #47. He could have continued to work and used the contract procedure if he considered Truck #47 unsafe or not properly equipped. He, even after a cooling off period, beyond,June 23rd, has made no effort to return to work and drive his regularly assigned Truck #47. He knew the compa- ny's operating procedure as demonstrated by the fact he drove Truck #47 for fifteen years. From the Grievant's actions the Arbitrator con- cludes that the grievant did quit his employment voluntarily and that he was not unduly coerced or discharged by the Company. As noted in the March 31, 1982 decision herein, the in- volved truckdriver, Arwood, ceased utilizing "ear muffs," while driving the involved truck because he be- lieved the device "blocked-out" traffic noise such as horns, sirens, and police whistles, and the two-way radio in his truck. He wore the device for approximately 4 months and ceased in August 1979, approximately 10 months before the above-described confrontation. One of the experts called by Respondent in the trial herein testi- fied that it is a very common problem in the industry for employees to hesitate to wear hearing protection because they believe they cannot hear. Arwood did not view the wearing of ear muffs as a viable alternative and his belief regarding the device cannot, in my opinion, be charac- terized as unreasonable. Grant Martin did not expressly consider this to be a viable alternative for there was no indication that he even knew about Arwood wearing ear muffs while operating the involved truck and Grant Martin did not offer this as an alternative during the above-described confrontation. Regarding the above-described conclusion of the arbi- trator that Arwood did not offer to go to work after June 23, 1980, it was noted at page 23 in the March 31, 1982 decision that Respondent did not deny Arwood's testimony that after seeing the doctor he returned to Respondent's facility on June 25, [1980] and spoke with Respond- ent's regular dispatcher, Eallonardo, who placed Arwood's starting time on the driver's seniority list and told Arwood to report in for work at 7 a.m. on June 26, [1980]. The record does not contain any evidence that Arwood's desire to return to work on June 26 was in any way qualified. Respondent does not deny that it, through Eallonardo, then called Arwood and told him not to come to work on June 26.2 The arbitrator's conclusion that Arwood "could have contined to work and used the contract procedure if he considered Truck 47 unsafe or not properly equipped" must be based on his other conclusion that the truck could have been operated with ear muffs and the conclu- sion that if Arwood was willing to work he could have. Respondent did not offer to let Arwood drive another truck on June 23, 1980, or at any time thereafter. Conse- 2 It is noted that the arbitrator at p 7 of his opinion and award (at- tached to ALJ Exh 1) indicated that "the Company states [Arwood] on June 23 left the jobsite and did not again report for work " The arbitrator's opinion and award also indicated that the attorney who ap- peared herein for Respondent appeared there for the Company No attor- ney appeared for the Union in the arbitration proceeding MARTIN REDI-MIX quently, the only way Arwood could have continued to work on June 23, 1980, was to drive truck 47. As indi- cated above, Arwood believed he could not hear ade- quately with the ear muffs on. Since Respondent would not let Arwood return to work, there is no way that he could have continued to work after June 23 In my opinion the arbitrator was not presented with the facts relevant to resolving the alleged unfair labor practice and he failed to treat the contractual issue in- volved herein. His award is palpably wrong.3 9 The United States Supreme Court in Gary McDonald Y City of West Branch, No 83-219 (Apr 18, 1984), unanimously acknowledged that there are specified shortcomings in the arbitration process There it was a 563 It is also my opinion that nothing in City Disposal Sys- tems, supra, requires a result different than that reached in the March 31, 1982 decision. Accordingly, the findings, conclusions, remedy, rec- ommended Order, and appendix of the March 31, 1982 decision herein are affirmed question of judicial factfinding versus arbitral factfinding while in cases such as the one at hand it is a question of arbitral factfinding versus quasi-judicial factfindmg There the Court was also dealing with a differ- ent statute Nonetheless, some of the observations made by the Court ap- parently would apply equally to judicial and quasi-judicial proceedings Here, however, we are not dealing with the arbitral process in general but rather a specific arbitration award, the determinations reached herein are based on that specific arbitration award