Sawin & Co., Inc.

SAWIN & CO Sawin & Co., Inc. and Hector Rodas. Case 31-CA- 14057 12 November 1985 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 29 May 1985 Administrative Law Judge Earldean V.S. Robbins issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief 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. i In agreeing with the judge, we find that the General Counsel failed to carry the burden of establishing that the facts generally relevant to the alleged unfair labor practice were not presented to the arbitrator at some time during the arbitration proceeding. See Martin Redi-Mix, 274 NLRB 559 (1985) Richard S. Zuniga, Esq., for the General Counsel. Donald B. Wallace, Esq., of Los Angeles, California, for the Respondent. DECISION STATEMENT OF THE CASE EARLDEAN V.S. ROBBINS, Administrative Law Judge. This matter was heard before me in Los Angeles, Cali- fornia, on various dates in October and November 1984. The charge was filed by Hector Rodas, an individual, on 16 April 1984 and served on Sawin & Co., Inc. (Re- spondent) on 17 April 1984. The complaint which issued on 27 July 1984 alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act. The basic issues herein are (1) whether the Board should defer to an arbitration award rendered with respect to Repondent's refusal to reinstate seven economic strikers allegedly because of picket line misconduct and (2) if not, whether these employees engaged in picket line mis- conduct serious enough to deprive them of the protec- tion of the Act. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT 1. JURISDICTION 393 At all times material herein Respondent, a California corporation with an office and place of business located in Chatsworth, California, has been engaged in the busi- ness of furniture manufacturing. Respondent, in the course and conduct of its business operation, annually sells and ships goods and services valued in excess of $50,000 directly to customers located outside the State of California. The complaint alleges, Respondent admits, and I find that Respondent is now, and has been all times material herein, an employer engaged in commerce and in a busi- ness affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that United Industrial Workers of the United Furniture Workers of America, Local 1010, AFL-CIO (the Union) is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Union was certified as the collective-bargaining representative of Respondent's employees on 30 May 1983 and thereafter the Union and Respondent entered into negotiations for a collective-bargaining agreement. After failing to reach an agreement on a contract, the Union took a strike vote and about 130 to 150 of the ap- proximately 170 unit employees went out on strike on 1 November 1983.1 A picket line was maintained through- out the 3-week strike. During the first week, about 120 to 130 of the strikers were on the picket line at one time. Thereafter, pursuant to a temporary restraining order, the number of strikers on the picket line was limited to about 50 at any one time. There were no negotiations during the first week of the strike but thereafter negotiations resumed. During a negotiation session on 17 November the outstanding issues and the settlement of the strike were discussed by the parties. During the course of this discussion, accord- ing to Al May, National Coordinator of Organization for the Union's parent body, he told Phillip Sawin, Respond- ent's owner and president, that if agreement could be reached on the outstanding issues, the Union would ter- minate the strike and the employees would return to work the following Monday. Sawin said he could rein- state only about 30 of the strikers, since he would not terminate the loyal employees who were crossing the picket line to work during the strike and thus had no place for the other strikers. Sawin agreed, however, that with the exception of 16, he would put the other strikers on a preferential hiring list and recall them as needed. As I All dates hereinafter in October, November, and December are in 1983 and in January and February, dates are in 1984 277 NLRB No. 44 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the 16, he said he would not reinstate them because there had been violence in the strike, they had picketed his house, tires had been slashed, and there was just no way they could ever return to Respondent's employ. After some discussion May proposed , and Respondent subsequently agreed, that they would arbitrate the issue of the 16 strikers who Sawin said would not be reinstat- ed or placed on a preferential hiring list. Of these 16, ac- cording to May, Sawin said Respondent had pictures of them shouting, he knew they were picketing his house, and they were suspected of engaging in other miscon- duct. An arbitration hearing was held on 16 and 17 Febru- ary. Representing the Union at the hearing were May and Cesar Reyes, a business agent and an organizer for the Union. Representing Respondent was its labor con- sultant Kenneth White. The parties submitted a joint sub- mission agreement which set forth the issues as: A. Did the Company act unfairly by refusing to reinstate the below listed individuals, because of their actions during the strike, when the strike was concluded? B. Because of their actions, are the below listed employees indebted to the Company in the amounts stated opposite their names because of damages sus- tained by the Company; and if not, what should the damages be? (Punitive & Actual.) The arbitrator dismissed the case with prejudice as to 3 of the 16 strikers.2 Reyes testified, without contradiction, that no witnesses testified on behalf of Respondent at the arbitration hearing. With the exception of Baltazar San- doval, all of the alleged discriminatees herein-Jose Beas, Juan Carlos Beas, Rodas, Ubaldo Rodriguez, Miguel Zepeda, and Guillermo Tortola-were present at the arbitration hearing and testified on their own behalf. The arbitrator's opinion set forth the facts and posi- tions of the parties and his conclusions as follows: At issue are the reinstatements of the other twelve individuals. Their longevity at the plant ranges from six months to ten years of service. The Company presented a lengthy and substantial brief prepared by their Attorneys pursuant to secur- ing Restraining Orders against the Union during the strike. The principle issues in the Orders were to keep the strikers from blocking ingress and egress to the plant; harassing of nonstriking employees; consuming of alcoholic beverages on the picket lines; and otherwise damaging company property. The Company also presented evidence that the strikers had caused damages in the amount of $90,119.83. This amount also included the costs for security services during the course of the strike. Af- fidavits of employees to support charges of harass- ment were attached to the Brief. The twelve witnesses responded to eleven ques- tions put to them by the Union Counsel. Their re- sponses were identical . However, skillful cross ex- 2 One made his own arrangements to return to work and the other three failed to appear These three could not be located by the Union. amination brought forth a variety of answers to the activities of the individuals while they were on the picket line. It is noteworthy that many answers on cross-examination were "I don't recall-I don't re- member" or in the alternative "I don't understand the question" even though they were effectively translated by the Union's translator. IV. POSITION OF COMPANY The Company forcefully argued that they had not experienced, before or after the strike, the huge amounts of damages as a result of employees slashed tires. The Restraining Order Petition shows photos of individuals blocking cars either as individ- uals or as groups and yet none of the witnesses in these proceedings saw or heard any such thing. The streets were littered with beer cans but no one ever saw anyone drink anything. Lastly, they argued that, aside from the credibil- ity of the testimony, all were given the opportunity to return but failed to do so. Based on the forego- ing, they prayed that the individuals not be reinstat- ed and that they should be held to answer in dam- ages as stated in Section II of this Opinion. V. POSITION OF UNION The Union argued forcefully that the position of the Company as to these individuals was unjust. The brief for the TRO was requested early on in the strike and even though photos did show more than the legally authorized number of pickets, it did not specifically enumerate the individuals in this proceeding. The Union also argued that the basis for the dam- ages requested was not stated sufficiently at this proceeding to grant that type of relief. They therefore prayed that all the individuals be reinstated with full seniority benefits and back pay from the ending date of the strike to the present. VI. CONCLUSIONS Before proceeding to decision it is necessary to advise the Parties on how this decision was reached. This is a case of first impression for this Arbitrator, since there is no contract upon which to base a decision. In addition, there are no grievances or contractual precedents between the Parties to assist fashioning a resolution. Therefore, this decision turns on the credibility of each individual witness as to his own case. The credibility was determined by this Arbitrator based on his years of experience in examining witnesses in same or similar circumstances. It is also noteworthy that the Union is fashioning their direct examination choice to use the identical eleven questions for each individual witness. This form failed to assist the Arbitrator. However, the skillful cross-examination of the witnesses proved to be the basis upon which credibility was established. It must be stated that those witnesses who were ca- pable of responding in a forthright manner to direct SAWIN & CO examination but could not grasp or understand questions on cross-examination, did little if anything to assist their individual cases. Based on the foregoing facts and testimonial evi- dence, the Arbitrator believes that there was suffi- cient intrinsic evidence presented to fashion the Award that is made. The arbitrator then found that the Company had acted unfairly by refusing to reinstate five of the named strik- ers but had not acted unfairly by refusing to reinstate Zepeda, Rodas, Rodriguez, Sandoval, Tortola, Juan Beas, and Jose Beas. All the alleged discriminatees who testified at the hearing herein denied they ever punctured tires or saw anyone else do so, threw nails or tacks on the street or on Respondent's property, threw rocks or other objects at vehicles of persons crossing the picket line, carried weapons or drank alcoholic beverages on the picket line or were intoxicated on the picket line or in any manner caused damage to the property of the Company or em- ployees. Rodas, Zepeda, Juan Beas, and Tortola denied they ever blocked ingress into and egress from Respond- ent's facilities. Jose Beas, Rodas, and Juan Beas denied they ever hit any person or vehicle crossing the picket line. Rodas, Juan Beas, and Tortola denied speaking obscenities to persons crossing the picket line. Jose Beas, Rodriguez, and Zepeda admit that they did speak obscenities to per- sons crossing the picket line and Juan Beas testified that he heard other strikers speak obscenities. Jose Beas, Ro- driguez, Zepeda, and Tortola testified that they made de- rogatory remarks to persons crossing the picket line. Jose Beas, Rodriguez, and Tortola denied threatening employ- ees crossing the picket line.3 Jose Beas, Zepeda, Juan Beas, and Tortola denied having any fights or scuffles on the picket line. Rodriguez admits that he engaged in a scuffle on the picket line; however, according to him, the fight was initiated by one of the nonstrikers.4 Rodas, Rodriguez, and Tortola denied ever picketing Phillip Sawin's home or the home of anyone else. Jose Beas, Zepeda, and Juan Beas testified that they did picket the home of Phillip Sawin but deny that any of the picketers yelled while they were picketing the Sawin home. Jose Beas testified that Mrs. Sawin was in the house for a portion of the time they were picketing. Jose Beas also testified that he and Zepeda picketed the home of Bill Sawin, Phillip Sawin's brother. Zepeda testified that on one occasion he and Juan Beas followed Bill Sawin when he left Respondent's facility. B. Positions of the Parties Respondent offered no evidence as to the substantive issues involved herein. Rather, relied on its argument that the Board should defer to the arbitration because the arbitration was conducted fairly, all parties agreed to be bound, the arbitrator was presented with the same facts a The other alleged discrimmatees were not questioned in this regard. 4 In Rodriguez' prehearmg affidavit, he mentions making remarks to persons crossing the picket line but did not mention yelling obsecenities Juan Beas admits that his prehearing affidavit was untrue in that it states that the picketing strikers never blocked the entrance 395 underlying the present unfair labor practice charge, and the arbitrator's award is not clearly repugnant to the Act.5 It is undisputed that Respondent and the Union agreed to be bound by the arbitration proceedings . However, the General Counsel contends that deferral is inappropri- ate because: 1. The arbitration proceedings do not appear to have been fair and regular in that Respondent did not present any witnesses at the arbitration hearing but instead submitted the brief, along with accom- panying affidavits of employee witnesses, prepared in support of its efforts to secure restraining orders against the Union, thereby denying the alleged dis- criminatees in the Union any meaningful opportuni- ty to cross-examine adverse witnesses . See Honolulu Star-Bulletin 123 NLRB 395; Versr Craft Corp., 227 NLRB 877. 2. The award provides no basis for determining whether the arbitrator considered the statutory issue since the arbitrator was faced with the issue of whether Respondent acted "unfairly" by refusing to reinstate the alleged discriminatees because of strike misconduct whereas the statutory issue is whether the alleged discriminatees engaged in "serious acts of misconduct" such as would disqualify them from the protection of the Act, Clear Pine Moldings, Inc., 268 NLRB 1044, and the arbitrator failed to make definitive findings of fact with respect to what ac- tions the alleged discriminatees engaged in and whether such conduct was sufficiently serious to remove them from the protection of the Act. See Triple A Machine Shop, 245 NLRB 136 and Ameri- can Freight System, 264 NLRB 126. 3. The only evidence as to the alleged miscon- duct was heresay evidence based on Respondent's temporary restraining order brief that unidentified and unnamed strikers had blocked ingress and egress to the plant; had harassed nonstriking em- ployees; consumed alcoholic beverages on the picket line, slashed tires and otherwise damaged company property .6 See Coronet Casuals, inc., 207 NLRB 304, 305; Moore Business Forms, Inc., 224 NLRB 393, 394,. 5. The arbitrator who was presented with no af- firmative evidence of misconduct by the individual strikers involved in the arbitration hearing ground- ed his award on his disbelief of their denial that they had engaged in any misconduct despite "a well-established principle of law that the mere dis- 5 During the prehearing stage of this matter, the Regional Director ini- tially deferred to the arbitration award and dismissed the charge here Thereafter, Rodas appealed from the dismissal, and the Regional Director decided to view the appeal as a motion for reconsideration of the deci- sion to dismiss, and upon reconsideration, rescinded the dismissal and subsequently issued the complaint herein 8 No evidence was submitted in support of this contention. The sole reference to identification of perpetrators in the arbitration award recites only that the discrimmatees could not be identified lm the photographs showing the blocking of ingress and egress 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD belief of testimony does- not, of itself support a basis for finding that an act has occurred." See Jannigan v. Taylor, 344 F.2d 781, 784 (C.A. 1, 1965). C. Conclusions The Board has long recognized that national policy favors the voluntary settlement of labor disputes and that this policy can best be served by recognizing an arbitra- tor's award where the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the arbitration decision is not clearly repugnant to the purposes and policies of the Act. Spielberg Mfg. Co., 112 NLRB 1080 (1955). This rule was reaffirmed by the Board in Olin Corp., 268 NLRB 573 (1984). However, in that case the Board rejected the idea that arbitration awards are appropriate for deferral only when the Board determines on de novo consideration that the award dis- poses of the issues just as the Board would have. Ac- cordingly, the Board adopted the following standard for determining the appropriateness of deferral (268 NLRB at 574): We would find that an arbitrator has adequately considered the unfair labor practice if (1) the con- tractual 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 practice. [Footnote omitted.] In this re- spect, differences, if any, between the contractual and statutory standards of review should be weighed by the Board as part of its determination under the Spielberg standards of whether an award is "clearly repugnant" standard, we would not re- quire an arbitrator's award to be totally consistent with Board precedent . Unless the award is "palpa- bly wrong" [footnote omitted], i.e.,` unless the arbi- trator's decision is not susceptible to an interpreta- tion consistent with the Act, we will defer. Additionally, the Board held that the party seeking to have the Board reject deferral has the burden of affirma- tively demonstrating the defects in the arbitrable process or award. In view of this standard I am not persuaded by the General Counsel's argument. As noted above, it is undis- puted that Respondent and the Union agreed to be bound by the arbitrator's decision, and the Charging Party and the other alleged discriminatees testified in their own behalf. There is no evidence that the Union or the alleged discriminatees sought to compel the attend- ance of the affiants at the arbitration hearing or protested any facet of the arbitration proceeding, including the Employer's reliance on affidavits attached to its brief submitted in support of its efforts to secure restraining orders against the Union and the attendant lack of op- portunity to cross-examine the affiants. In these circum- stances, I cannot conclude that the proceeding was not fair and regular because Respondent relied on affidavits rather than presenting witnesses. The Board does not re- quire that the strict standard of a Board hearing be met in order that an arbitration award be honored. Honolulu Star-Bulletin, 123 NLRB 395, 408, 416-417 (1959); B & L Motor Freight, '253 NLRB 115 (1980). Nor can I find that the arbitrator has not adequately considered the unfair labor practice. The issue before the arbitrator-whether Respondent unfairly refused to rein- state the alleged discriminatees because of their conduct during the strike-is factually parallel to the unfair labor practice issue-whether the alleged discriminatees en- gaged in strike misconduct serious enough to remove them from the protection of the Act.7 As to the argu- ment that the arbitrator was not presented with the facts relevant to resolving the unfair labor practice issue, the burden is on the General Counsel to establish that rele- vant facts were not presented. This burden has not been met. There is no evidence in the record as to what the affidavits did or did not cover. Nor am I persuaded by the General Counsel's argu- ment that "the mere disbelief of testimony does not of itself support charges of harassment but does not specifi- cally recite what the evidence was nor whether the al- leged discriminatees were specifically identified as perpe- trators. However, the burden of proof in discharge and discipline arbitrations is generally on the employer," and I cannot assume, without supporting evidence, that the arbitrator was so derelict in his duties as to not require that the employer meet this burden. Here the General Counsel's burden of establishing the existence of such de- ficiencies has not been met. In the circumstances, I cannot conclude that the arbitrator's decision is not,sus- ceptible to an interpretation consistent with the Act. Accordingly since the parties agreed to be bound by the arbitrator's award, the statutory issue and the issue before the arbitrator are factually parallel, there is insuf- ficient evidence to establish that facts generally relevant to the unfair labor practice issue were absent from the record before the arbitrator's award is not palpably wrong, I find that deferral to the arbitrator's award is ap- propriate. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization as defined in Sec- tion 2(5) of the Act. 3. It will effectuate the purposes and policies of the Act to defer to the arbitration award and to dismiss the complaint in its entirety. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The complaint is dismissed in its entirety 7 Clear Pine Mouldings, 268 NLRB 1044 (1984) 8 Elkouri and Elkouri, How Arbitration Works 621-623 (3d ed 1973), Owen Fairweather, Practice and Procedure in Labor Arbitration 254-256 (2d ed 1983) B 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