Verizon, Inc.

222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Verizon New England, Inc. and International Broth- erhood of Electrical Workers, Local 2324, AFL– CIO. Cases 01–CA–044539, 01–CA–044556, and 01–CA–044612 March 9, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND JOHNSON On November 15, 2011, Administrative Law Judge Jo- el P. Biblowitz issued the attached decision. The Gen- eral Counsel and the Charging Party each filed excep- tions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegated 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 briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.1 The complaint alleges that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by telling employees to remove informational picket signs from the windows of their personal vehicles parked on its property. An arbitration panel found that the display constituted picketing in contravention of the “no picket- ing” provision of the parties’ collective-bargaining agreement. On a stipulated record, the judge deferred to the arbitration award and dismissed the complaint. The General Counsel and the Charging Party except, arguing that the arbitration award is “clearly repugnant” to the Act. Unlike the judge and our dissenting colleague, we agree that the award is clearly repugnant to the Act for the reasons discussed below.2 We further find that the Respondent’s directive violated Section 8(a)(1) of the Act. Facts The Respondent and the Charging Party were parties to a collective-bargaining agreement, effective through August 2, 2008, that covered the Respondent’s facilities in Massachusetts and Rhode Island, including its West- field, Springfield, and Hatfield, Massachusetts facilities where this case arose. Since 1977, the parties have in- cluded the same “No Strike” provision in their collective- 1 We shall substitute a new notice to conform to the Order as modi- fied and in accordance with our decision in Durham School Services, 360 NLRB 694 (2014). 2 In Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014), the Board modified its postarbitral deferral standard, but decided that it would not apply the modified standard in pending cases. Id., at 1140. Accordingly, we decide this case under the standard adopted in Olin Corp., 268 NLRB 573 (1984). bargaining agreement. That provision, Article G10, pro- vides, in pertinent part: The Union agrees that during the term of this Agree- ment, or any extension thereof, it will not cause or permit its members to cause, nor will any member of the Union take part in any strike of or other interference with any of the Company’s operations or picketing of any of the Company’s premises . . . . [Emphasis added.] Despite that contractual provision, the Charging Party had a long-established practice of engaging in ambulato- ry informational picketing at or near the Respondent’s facilities, most commonly when the contract was nearing expiration. Consistent with this practice, in March 2008, the Charging Party distributed to bargaining unit em- ployees 28” x 22” picket signs, bearing the slogans, “Verizon, Honor Our Existing Contract” and “Honor Our Contract.” Also in March, ambulatory picketing began at some of the Respondent’s Massachusetts facilities, but it was not slated to begin until April at the Westfield, Springfield, and Hatfield facilities. A few weeks prior to the start of informational picket- ing at those three facilities, employees began displaying their picket signs in the windows of their personal vehi- cles parked on the Respondent’s property while they were at work. The Respondent instructed the employees to remove the signs, and the employees complied. No employee was disciplined for displaying a sign, nor is there evidence that the displays interrupted or otherwise disrupted the Respondent’s operations. The Charging Party filed unfair labor practice charges alleging that the Respondent violated Section 8(a)(1) of the Act by prohibiting employees from displaying the signs in their vehicles. The Regional Director deferred the cases to the parties’ contractual grievance and arbitra- tion process under Collyer Insulated Wire, 192 NLRB 837 (1971). The Charging Party’s grievance alleged that the Re- spondent violated the contract by requiring the employ- ees to remove the signs.3 The grievance was heard by a three-member arbitration panel. In a two to one vote, the panel denied the grievance, finding that the display of signs in employees’ vehicles amounted to picketing in violation of article G10. The award stated: 3 In support of its grievance, the Charging Party cited article G9.03(b) of the contract and contended that the Respondent’s decision to order the signs removed was arbitrary or in bad faith. Article G9.03(b) states: If such grievance concerns any other determination of the Company involving the exercise of discretion, such determination shall not be set aside by the Board of Arbitrators unless it shall find it to have been made arbitrarily or in bad faith. 362 NLRB No. 24 VERIZON NEW ENGLAND, INC. 223 By any other name, Union members who place protest signs in their cars to inform the public of its contract concerns with [the Respondent] are engaged in picket- ing. While the Union argues that placing signs in cars is not picketing because doing so only communicates a message, that is precisely what picketing is: to inform the public of the Union’s concerns. Picketing does not have to be a sign on a stick. In support of its conclusion, the award cited article G10, “several contract clauses,”4 and two extrinsic sources— namely, a book on picketing from 18975 and a labor dic- tionary from 1949.6 Expressly declining to rule on the statutory issue, the award stated: “Whether the [Respond- ent’s] demand that the signs be removed from employees’ vehicles infringed employees’ Section 7 rights is a question that we do not have the authority to resolve.” The judge deferred to the arbitration award under Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin 4 The award did not clearly identify the contract clauses. But the award quoted articles G7 (Union Bulletin Boards) and G11 (Manage- ment Rights) as relevant provisions of the parties’ agreement. Those two articles state as follows: ARTICLE G7 (Union Bulletin Boards) G7.01 The Company agrees to furnish, without charge, space at bar- gaining unit locations to erect free access bulletin boards of a size ap- proximately 30 by 30 inches. Bulletin boards will be furnished by the Union and erected by the Company. The number to be erected and the locations at which erected shall be mutually decided upon by au- thorized Union officials and Company representatives. G7.02 Bulletin boards are to be used by the Union for posting notices concerning official Union business, or other Union related matters, provided that if anything is posted on these bulletin boards that is con- sidered by the Company to be controversial or derogatory to any indi- vidual or organization the Union agrees to remove such posted matter on demand and if it falls or refuses to do so, such matter may be re- moved by the Company. ARTICLE G11 (Management Rights) G11.01 Subject only to the limitations contained in this Agreement the Company retains the exclusive right to manage its business, in- cluding (but not limited to) the right to determine the methods and means by which its operations are to be carried on, to assign and direct the work force and conduct its operations in a safe and effective man- ner. 5 W.J. Shaxby, THE CASE AGAINST PICKETING 11 (1897). The award quotes the following passage from this source: “During a recent strike a small boy sat on a fence near the works and ate chocolates, whistling in the gladness of his heart between each toothsome morsel. In reality he was a ‘picket,’ and was marking and counting the men who entered the works.” 6 P.H. Casselman, THE LABOR DICTIONARY 362 (1949). Although the award cites this source to support its contention that displaying the signs constituted picketing, it fails to quote the dictionary’s definition, which actually states: “[P]icketing: The stationing of men for observa- tion or in order to coerce or to threaten, to intimidate or halt or to turn aside against their will those who would go to and from the picketed place to do business, or to work, or to seek work therein, or in some other way to hamper, hinder or interfere with the free dispatch of busi- ness by the employer.” Corp., 268 NLRB 573 (1984). The General Counsel and the Charging Party argued that the award was clearly repugnant to the Act because the placing of the signs in vehicles was protected by Section 7 of the Act and there was no “clear and unmistakable” waiver of the right to engage this activity. The General Counsel and the Charging Party further argued that the employees’ con- duct did not constitute “picketing” because the stationary display of signs in their vehicles lacked the necessary element of confrontation, citing Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB 797, 802 (2010). The judge found that these arguments, even if correct, failed to show that the award was repugnant to the Act. He agreed with the Respondent that “[t]here is nothing in Board law that prevents an arbitrator from interpreting the word ‘picket’ in a collective bargaining agreement provision prohibiting picketing more broadly than the Board would in an unfair labor practice case not involving such a provision.” Discussion Under Spielberg, supra, the Board defers to an arbitra- tion award when 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. The Board also condi- tions deferral on the arbitrator having adequately consid- ered the unfair labor practice issue, which is satisfied 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 practice. Olin Corp., supra at 574. Deferral, how- ever, will be found inappropriate under the clearly re- pugnant standard where the arbitration award is “‘palpa- bly wrong,’ i.e., the decision is not susceptible to an in- terpretation consistent with the Act.” Id. Here, the only deferral factor in dispute is whether the arbitration award is “clearly repugnant” to the Act. For the reasons discussed below, we agree with the General Counsel and the Charging Party that the award is “clearly repugnant,” and we reverse. Section 7 of the Act gives employees the right to en- gage in concerted activities for the purpose of collective bargaining or for other mutual aid or protection. The Board and the courts have made clear that, absent special circumstances, employees’ display of prounion signs in their car windows on an employer’s property is protected concerted activity under the Act. See, e.g., International Business Machines Corp., 333 NLRB 215, 219–221 (2001) (finding 8(a)(1) violation where supervisors told employees that displaying prounion signs on their vans parked in employee lots violated company policy), enfd. 31 Fed. Appx. 744 (2d Cir. 2002); Firestone Tire & 224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rubber Co., 238 NLRB 1323, 1323 (1978) (finding 8(a)(3) and (1) violation where respondent disciplined employee who refused to remove prounion signs affixed to his car while parked in employee lot), enfd. mem. 651 F.2d 1172 (6th Cir. 1980); Coors Container Co., 238 NLRB 1312, 1319 (1978) (finding 8(a)(1) violation where respondent promulgated and enforced rule prohib- iting employees from displaying boycott sign inside a truck while on company premises), enfd. 628 F.2d 1283 (10th Cir. 1980); see also Machinists District Lodge 91 v. NLRB, 814 F.2d 876, 879 (2d Cir. 1987) (approving Board’s conclusion that employee engaged in protected activity when he displayed campaign sign on his van parked in employee lot). It is also well settled that unions may waive certain Section 7 rights. See, e.g., Lear Siegler, Inc., 293 NLRB 446, 447 (1989). Such waivers of statutory rights, how- ever, “are not to be lightly inferred, but instead must be ‘clear and unmistakable.’” Georgia Power Co., 325 NLRB 420, 420 (1998) (citing Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983)), enfd. mem. 176 F.3d 494 (11th Cir. 1999); see also 110 Greenwich Street Corp., 319 NLRB 331, 334 (1995). “[E]ither the con- tract language relied on must be specific or the employer must show that the issue was fully discussed and con- sciously explored and that the union consciously yielded or clearly and unmistakably waived its interest in the matter.” Georgia Power Co., supra at 420–421. The “clear and unmistakable” waiver standard has been ap- plied by the Board for over 50 years and “has become deeply engrained in the administration of the Act and in the conduct of collective bargaining.” Provena St. Joseph Medical Center, 350 NLRB 808, 811–812 (2007). Alt- hough the Board has not required that arbitrators apply this standard as the Board would, in determining whether an award is repugnant to the Act, the Board will review “all the circumstances, including the contractual lan- guage, evidence of bargaining history and past practice presented in the case.” Southern California Edison Co., 310 NLRB 1229, 1231 (1993), affd. sub nom. Utility Workers Local 246 v. NLRB, 39 F.3d 1210 (D.C. Cir. 1994); see also Motor Convoy, 303 NLRB 135, 136 (1991) (finding that the difference between the standard used by an arbitration panel and the Board’s statutory standard, while not dispositive, is relevant to whether an award is repugnant). Applying these principles, we find that the award is clearly repugnant to the Act. The award concluded that the Charging Party, by agreeing to the limitations on “picketing” in article 10, waived its right to post signs in the windows of unattend- ed vehicles parked on the Respondent’s property. The award, however, is devoid of any reasoning to support its conclusion that the conduct constitutes picketing other than stating that picketing “inform[s] the public of the Union’s concerns” and “does not have to be a sign on a stick,” citing a nineteenth century book about picketing and a mid-twentieth century labor dictionary.7 The award cited nothing in article G10 or elsewhere in the contract, nothing in the parties’ bargaining history, and no other extrinsic evidence to indicate that the parties either intended or anticipated that article G10 would cov- er the type of conduct at issue here.8 See Engelhard Corp., 342 NLRB 46, 48 (2004) (finding it “hard to see” how union clearly and unmistakably waived its right to engage in informational picketing at shareholders’ meet- ing away from worksite where parties did not contem- plate the waiver issue arising in the “unusual context” of that case), enfd. 437 F.3d 374 (3d Cir. 2006). Indeed, the Charging Party’s long established practice of engaging in informational picketing shortly before contract expiration further demonstrates that the parties did not understand the conduct at issue to be encompassed by the provision barring picketing.9 Moreover, the award offered no support for its implicit suggestion that the parties understood “picketing” to en- compass the displaying of signs in employees’ vehicles. 7 Moreover, the arbitration award’s citations to the 1891 book and 1949 labor dictionary—apparent references to industry custom or un- derstanding—likewise fail to support its conclusion. In fact, quite the opposite—they militate against it. The signs here were merely posted in unattended vehicles. And unlike the circumstances described in the two cited sources, no one was stationed by the picket signs, and there is no evidence of any coercion or intimidation of those who went to and from the Respondent’s premises. 8 As noted above, the award states, without any discussion, that “several contract clauses” reflect the Charging Party’s agreement that there would be no picketing on the Respondent’s premises, presumably referring to article G7 (Union Bulletin Boards) and article G11 (Man- agement Rights), which are cited elsewhere in the award as relevant provisions. However, neither of these provisions even remotely ad- dresses the right of employees to display signs in their personal vehi- cles. With respect to article G10, the Respondent argues that the panel correctly interpreted the “no picketing” obligation separately from the obligation not to engage in “any strike of or other interference with any of the Company’s operations.” According to the Respondent, the use of “or” between the two obligations was intended to prohibit all picket- ing, not just picketing causing “interference” with its operations. But whether the “no picketing” language instituted such an absolute prohi- bition is irrelevant because the employees’ conduct was not picketing. 9 If anything, the evidence recounted by the award but never dis- cussed in reaching its conclusion demonstrates that the parties narrowly interpreted the “no picketing” clause. That evidence shows, and the Respondent concedes, that the Charging Party engaged in informational picketing near the Respondent’s facilities “for many years,” and the Respondent “tolerated” such activity despite believing that it violated the “no picketing” provision. Although in this case the disputed display occurred on the Respondent’s property, the Respondent’s earlier toler- ance of the employees’ actual, physical picketing for informational purposes is at odds with its attempt now to construe the “no picketing” language as an absolute ban. VERIZON NEW ENGLAND, INC. 225 Its terse statement that “picketing is: to inform the public of the Union’s concerns” is contrary to the well- established body of law defining picketing to include a confrontational element—which the parties were pre- sumably aware of when they entered into their successive collective-bargaining agreements. See Engelhard Corp., supra at 48 (citing cases that found that a collective- bargaining agreement must be read in light of the pre- vailing law at the time the contract was made). For in- stance, the Supreme Court has observed that “picketing is qualitatively ‘different from other modes of communi- cation.’” Babbitt v. Farm Workers, 442 U.S. 289, 311 fn. 17 (1979) (quoting Hughes v. Superior Court, 339 U.S. 460, 465 (1950)); see also DeBartolo Corp. v. Flor- ida Gulf Coast Building Trades Council, 485 U.S. 568, 580 (1988) (“[P]icketing is ‘a mixture of conduct and communication’ and the conduct element ‘often provides the most persuasive deterrent . . . .’”) (quoting NLRB v. Retail Store Employees, 447 U.S. 607, 619 (1980) (Ste- vens, J., concurring)). More recently, the Board has ex- plicitly distinguished “bannering” from “picketing” be- cause bannering lacks the confrontation that is essential to picketing. Carpenters Local 1506 (Eliason & Knuth of Arizona), supra; see also Chicago Typographical Un- ion No. 16 (Alden Press), 151 NLRB 1666, 1669 (1965) (“One of the necessary conditions of ‘picketing’ is a con- frontation in some form . . . .”) (quoting NLRB v. Furni- ture Workers, 337 F.2d 936, 940 (2d Cir. 1964)). To be sure, the Board has found that picketing is not confined to a “sign on a stick” and, in certain circum- stances, has held that stationary signs can constitute picketing. See, e.g., Construction & General Laborers Local 304 (Athejen Corp.), 260 NLRB 1311, 1316 (1982) (signs placed on cones, barricades, or a fence con- stituted picketing). But in finding that picketing oc- curred in such cases, the Board has relied on the presence of individuals in the area where the signs were stationed. “[T]he ‘important’ or essential feature of picketing is the posting of individuals at entrances to a place of work.” Service Employees Local 87 (Trinity Building Mainte- nance), 312 NLRB 715, 743 (1993), enfd. mem. 103 F.3d 139 (9th Cir. 1996); see also Lumber & Sawmill Workers Local 2797 (Stoltze Land & Lumber Co.), 156 NLRB 388, 394 (1965) (“The important feature of pick- eting appears to be the posting by a labor organization . . . of individuals at the approach to a place of business to accomplish a purpose which advances the cause of the union . . . .”). In other words, a necessary element of picketing is personal confrontation.10 Eliason & Knuth, 10 Our dissenting colleague observes that, in some cases, the Board has found picketing even absent patrolling or other ambulation. As the Board observed in Eliason & Knuth, however, in many of those cases, 355 NLRB at 802 (“The element of confrontation has long been central to our conception of picketing.”). No- tably, the award failed to reference any of the Board or court decisions that have defined what constitutes picket- ing. In sum, the contractual provisions cited by the Re- spondent and considered by the arbitration panel neither address nor reasonably encompass employees’ display of signs in their personal vehicles, and there is no evidence that the parties intended the contract to cover that con- duct. Accordingly, considering all the circumstances, as the award is not susceptible of an interpretation that is consistent with the Act, we find that it is “clearly repug- nant” to the Act, and that deferral to the award is inap- propriate. Because it is undisputed that the Respondent’s supervisors told employees at the three facilities that they could not display their signs in their vehicles, we con- clude that the Respondent unlawfully prohibited the em- ployees from exercising their Section 7 rights in violation of Section 8(a)(1) of the Act. ORDER The National Labor Relations Board orders that the Respondent, Verizon New England Inc., Springfield, Massachusetts, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Telling employees that they cannot display signs in their personal vehicles parked on company property. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days after service by the Region, post at its Springfield, Westfield, and Hatfield, Massachusetts facilities copies of the attached notice marked “Appen- dix.”11 Copies of the notice, on forms provided by the the display of picket signs was preceded at the same location or accom- panied at other locations by traditional, ambulatory picketing; union representatives were stationed near the stationary picket signs conspic- uously to observe and, in some cases, record who entered the facility; and/or there was evidence that the stationary signs or posted union representatives had the effect of inducing employees to refuse to make deliveries to the target site. 355 NLRB at 804. Given the surrounding circumstances in those cases, the Board explicitly or implicitly found the conduct at issue constituted “signal” picketing. Id. at 805; see also Southwest Regional Council of Carpenters (Held Properties), 356 NLRB 21, 21–22 (2010). There is no evidence of “signal” picketing here. Further, unlike the dissent, we are focused here on whether the Charging Party waived its right to engage in the conduct at issue. It is the award’s analysis and resolution of that question that we find clearly repugnant to the Act. 11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- 226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Regional Director for Region 1, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be dis- tributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facili- ty involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since March 27, 2008. (b) Within 21 days after service by the Region, file with the Regional Director for Region 1 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. MEMBER JOHNSON, dissenting. I respectfully disagree from my colleagues’ finding that deferral to the arbitral award at issue was inappropri- ate because that award was repugnant to the Act. Even recent Board precedent holds that the display of placards in employees’ cars parked on the employer’s premises is susceptible to being interpreted as picketing because the same placards were simultaneously being used for the same informational protest in ambulatory picketing else- where and were also taken from those vehicles by the employees and carried when it was their turn to walk the picket line. See Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB 797, 804 (2010) (“We also acknowledge that there are prior Board deci- sions finding picketing during periods when there was no patrolling or other ambulation. However, each of the prior cases is distinguishable from the banner displays at tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” issue here. In many of the prior cases, the display of station- ary signs or distribution of handbills was preceded at the same location or accompanied at other locations by tradi- tional, ambulatory picketing.”). Our deferral precedent holds that, if an arbitrator’s interpretation is allowable under the Act, our inquiry must end. So it was here. The picketing finding is also dispositive of the waiver issue. The Union here clearly and unmistakably waived the right of employees to engage in “picketing of any of the Employer’s premises.” If the display of placards in employees’ cars on the Employer’s premises in the cir- cumstances of this case can be defined as picketing con- sistent with the Act—and the Eliason & Knuth majority acknowledged that it has been so defined--no Board or judicial precedent requires reference to some extrinsic evidence of the parties’ negotiations and understanding before the Board will find waiver. There is no ambiguity here. The Union has the undisputed authority to waive the rights of represented employees on the Employer’s premises, and it has plainly done so. 1 Ultimately, deferral to an arbitral award merely re- quires that it be “consistent with the Act,” which the Board has repeatedly held “does not mean that the Board would necessarily reach the same result. It means only that the arbitral result is within the broad parameters of the Act. Thus, the Board’s mere disagreement with the arbitrator’s conclusion would be an insufficient basis for the Board to decline to defer to the arbitrator’s award.” Smurfit-Stone Container Corp., 344 NLRB 658, 659–660 (2005). See also Andersen Sand & Gravel Co., 277 NLRB 1204, 1205 fn. 6 (1985) (“Deferral recognizes that the parties have accepted the possibility that an arbitrator might decide a particular set of facts differently than 1 My colleagues disagree with the award because they do not find a “clear and unmistakable” waiver by the Charging Party. But the Board has deferred to an award even if “neither the award nor the [contract] clause read in terms of the statutory standard of clear and unmistakable waiver.” Motor Convoy, 303 NLRB 135, 136 (1991); see also Southern California Edison, 310 NLRB 1229, 1231 (1993) (arbitral award “can be susceptible to the interpretation that the arbitrator found a waiver even if the arbitral award does not speak in [terms of clear and unmis- takable waiver]”); Postal Service, 275 NLRB 430, 432 (1985) (defer- ring to arbitration award finding waiver of Weingarten rights despite failure to apply statutory standard); Olin Corp., 268 NLRB 573, 576 (1984) (Even though Board Members might differ as to required speci- ficity necessary for contractual waiver of statutory rights, “[t]he ques- tion of waiver . . . is also a question of contract interpretation. An arbitrator’s interpretation of the contract is what the parties here have bargained for and, we might add, what national labor policy pro- motes.”). VERIZON NEW ENGLAND, INC. 227 would the Board. This possibility, however, is one which the parties have voluntarily assumed through collective bargaining.”). Although my colleagues might reasonably disagree with the conclusion reached by the arbitration panel here, a disagreement over an arguable contract or legal interpretation is not enough to set aside the result from the parties’ chosen dispute resolution mechanism of arbitration. I would affirm the judge’s conclusion that deferral to the arbitration award is appropriate and that the com- plaint must be dismissed on this basis. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT tell you that you cannot display signs in your personal vehicles parked on company property. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. VERIZON NEW ENGLAND INC. The Board’s decision can be found at www.nlrb.gov/case/01-CA-044539 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273–1940. Laura Sacks, Esq. and Daniel Fein, Esq., for the General Coun- sel. Arthur Telegen, Esq. and John Duke, Esq. (Seyfarth Shaw LLP), for the Respondent. Alfred Gordon, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. The consoli- dated complaint here, which issued on June 30, 2011, and was based upon unfair labor practice charges that were filed on March 27, April 9 and 29, 2008,1 by International Brotherhood of Electrical Workers, Local 2324, AFL–CIO (the Union), al- leges that Verizon New England, Inc. (Respondent), violated Section 8(a)(1) of the Act, by telling employees in about March and April that they could not display signs containing such statements as “Verizon Honor Or Existing Contract,” “Verizon We Are Ready Contract 08” and “Every Verizon Worker Should Be A Union Worker” in personal vehicles parked on company property. Among other defenses, the Respondent defends that this complaint should be dismissed because the Board should defer to an arbitrator’s decision which meets the standards set forth in Olin Corp., 268 NLRB 573 (1984), and is dispositive of the charges here. I. JURISDICTION AND LABOR ORGANIZATION STATUS Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE FACTS The record here is based solely upon stipulations and exhib- its agreed to by the parties; there was no record testimony. The Respondent is engaged in the business of providing telecom- munications services nationwide; however, only three of its facilities in Massachusetts are involved here: the facilities in Westfield, Springfield, and Hatfield (the Westfield facility), the Springfield facility, and the Hatfield facility. Mark Brown was the manager of the Westfield facility, Tony Collier was the area operations manager of the Springfield facility, and David Walker was the area operations manager of the Hatfield facili- ty, and each of them is admitted to be a supervisor and agent of the Respondent within the meaning of Section 2(11) and (13) of the Act. Respondent was party to a collective-bargaining agreement effective from August 3, 2003, to August 2, covering so called “plant” employees in Massachusetts and Rhode Island. This bargaining unit is represented by a number of local unions of the International Brotherhood of Electrical Workers, including the Union. The contract contains a grievance and arbitration provision as well as a No Strike provision, which states: The Union agrees that during the term of this Agreement, or any extension thereof, it will not cause or permit its members to cause, nor will any member of the Union take part in, any 1 Unless indicated otherwise, all dates referred to here relate to the year 2008. 228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD strike of or other interference with any of the Company’s op- erations or picketing of any of the Company’s premises. In addition the contract provides that the Respondent shall fur- nish the Union with bulletin boards at its facilities, with the caveat: Bulletin boards are to be used by the Union for posting notic- es concerning official Union business, or other Union related matters, provided that if anything is posted on these bulletin boards that is considered by the Company to be controversial or derogatory to any individual or organization the Union agrees to remove such posted matter on demand and if it fails or refuses to do so, such matter may be removed by the Com- pany. The Union has engaged in ambulatory informational picket- ing at or near Respondent’s facilities over the years. This in- formational picketing was most common when contracts were nearing expiration. Employees engaged in informational pick- eting would arrive at work before the start of their shifts and carry picket signs either on the sidewalk in front of Respond- ent’s facilities, or in a nearby public area. In March 2008, in preparation for contract negotiations that were to take place in August 2008, without notice to Respondent, the Union began engaging in informational picketing at some of Respondent’s facilities in Massachusetts. While there was no picketing at or near the Westfield, Springfield, or Hatfield facilities in March 2008, the Union planned to engage in informational picketing at or near these facilities beginning in April 2008. According- ly, in March 2008, the Union distributed informational picket signs to employees, which contained language to the effect of: “Verizon, Honor Our Existing Contract.” These signs, measur- ing about 28 inches wide by 22 inches high, are in black with white lettering. Bargaining unit employees at the Springfield facility dis- played these signs in the windshields of their personal vehicles parked on the Respondent’s property during the first week of April 2008, and the signs were displayed in the cars every day that week. A line of about 30 cars with these signs was visible upon entering the parking lot and, depending on which way the cars were facing, some of these signs displayed in the cars were visible from the street. On about Friday, April 11, Collier in- structed bargaining unit employees to remove these signs from their car windows while the cars were parked on its premises, and the employees complied with these instructions and no employee was disciplined as a result of displaying the signs. At the time that these signs were displayed at the Springfield facil- ity, and at the time that Collier instructed the employees to remove the signs, no ambulatory informational picketing had occurred at the Springfield facility. Rather, the ambulatory informational picketing began in the street in front of the facili- ty between 7 and 7:30 a.m. on Thursday, April 24, and contin- ued at this facility at these same times on Thursday mornings thereafter for a period of time, using the signs that were placed in the car windows as discussed above. Bargaining unit employees at the Westfield facility displayed these signs in the windshields of their personal vehicles parked on the Respondent’s property on Thursday, March 20 and Fri- day, March 21. The signs displayed in the car windows were not visible from the public street, but were visible to Respond- ent’s bargaining unit employees and managers, and were visible to employees of the Penske Trucking and Agway facilities that share the property with Respondent, and were visible to deliv- ery drivers and others entering the property. On about Monday, March 24 or Tuesday, March 25, Brown instructed bargaining unit employees to remove these signs from their car windows while the cars were parked on its premises, and the employees complied with these instructions and no employee was disci- plined as a result of displaying the signs. At the time that these signs were displayed at the Westfield facility, and at the time that Brown instructed the employees to remove the signs, no ambulatory informational picketing had occurred at the West- field facility. Rather, the ambulatory informational picketing began in the street in front of the facility between 7 and 7:30 a.m. on Friday, April 25, and continued occasionally thereafter at this location at these same times. Bargaining unit employees at the Hatfield facility displayed these signs in the windshields of their personal vehicles parked on the Respondent’s property on Wednesday, April 23. The signs displayed in the car windows were not visible from the public street, because they were facing the wrong direction, but were visible to Respondent’s bargaining unit employees, man- agers, and contractors, and to others entering the property, such as personnel of waste removal and landscaping contractors and personnel of the Postal Service, Federal Express, and United Parcel Service. Later that day, Walker instructed bargaining unit employees to remove these signs from their car windows while the cars were parked on its premises, and the employees complied with these instructions at the time it was given, and no employee was disciplined as a result of displaying the signs. At the time that these signs were displayed at the Hatfield facil- ity, and at the time that Walker instructed the employees to remove the signs, no ambulatory informational picketing had occurred at this facility. Rather, the ambulatory informational picketing began in a private parking lot approximately one half mile from the Hatfield facility between 7 and 7:30 a.m. on Thursday, April 24, and continued occasionally thereafter at this location at these same times. The signs displayed in the bargaining unit employees’ per- sonal vehicles in March and April at the Springfield, Westfield, and Hatfield facilities as described above were not on sticks and when the bargaining unit employees engaged in the infor- mational picketing at or near these facilities, as described above, they used the same signs again, without sticks. Re- spondent is not aware of any interruption or other disruption of its operations caused by the ambulatory picketing at these facil- ities. On May 21 and June 18, Region 1 of the Board deferred the- se unfair labor practice charges to the grievance and arbitration procedures of the parties’ collective-bargaining agreement. Subsequently, the Union grieved the issue of whether the Re- spondent violated the contract by requiring the employees to remove the signs from their personal vehicles. An arbitration hearing was held on October 26, 2009, before Arbitrator Timo- thy Bornstein, one of a group of arbitrators regularly selected by the parties to resolve contractual disputes, and the Union presented six witnesses and Respondent presented one. Both VERIZON NEW ENGLAND, INC. 229 sides were afforded the opportunity to examine and cross- examine the witnesses and both submitted posthearing briefs. The arbitrators’ Award issued on January 20, 2010, with the Union’s designated arbitrator dissenting. The award summa- rizes the testimony of the business managers of the Union, as well as another IBEW local union, three employees and Walk- er, and sets forth the contractual language of the following pro- visions: Bulletin Board, Arbitration, No Strike, and Manage- ment Rights, and the contentions of both sides. The Opinion concludes: The core question here is whether management violated the parties’ contract when it required removal of Union protest signs from employee vehicles parked on Company premises. That was the issue which the NLRB Collyerized. We con- clude that several contract clauses reflect the parties’ agree- ment that the Union—and its members—would not engage in picketing on Company premises during the life of the collec- tive bargaining agreement. Article G10, the No Strike article, provides that the “Union . . . will not cause or permit its members to cause, nor will any member of the Union take part in, any strike of or other inter- ference with any of the Company’s operations or picketing of any of the Company’s premises.” By any other name, Union members who place protest signs in their cars to inform the public of its contract concerns with Verizon are engaged in picketing. While the Union argues that placing signs in cars is not picketing because doing so only communicates a mes- sage, that is precisely what picketing is: to inform the public of the Union’s concerns. Picketing does not have to be a sign on a stick. The Union also contends that the Company decision to order the signs removed from cars was arbitrary or in bad faith in violation of Article G9.03(b), but there is no such evidence. Whether the Company’s demand that the signs be removed from employees’ vehicles infringed employees’ Section 7 rights is a question that we do not have the authority to re- solve. Our authority is limited to interpreting the contract. We do no more. By letter dated August 27, 2010, Region 1 of the Board noti- fied the parties that it was refusing to issue a complaint in the matter and was dismissing the Union’s unfair labor practice charges, stating: By letter dated May 21, 2008, pursuant to the Board’s deci- sion in Collyer Insulated Wire, 192 NLRB 837 (1971), and pursuant to “Arbitration Deferral Policy under Collyer- Re- vised Guidelines” publicly issued by the General Counsel on May 10, 1973, I deferred a decision on the charges in the above-captioned cases pending the outcome of an arbitration proceeding. On January 20, 2010, the arbitrator selected by the parties is- sued an award ruling that the Employer acted within its rights when it required that the picket signs be removed from per- sonal vehicles in the Company parking lots. I have made a careful review of this matter and find that the arbitration proceedings were fair and regular, that the parties had agreed to be bound by the results of the proceedings, that the unfair labor practice issue alleged and involved in the charges were presented to and considered by the arbitrator, that the contractual issue was factually parallel to the unfair labor practice issue, that the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice, and that the award is not in conflict with the purposes or poli- cies of the National Labor Relations Act. Thus, the award meets the standards set forth by the Board in Olin Corpora- tion, 268 NLRB 573 (1984), and the Board would defer to the award. Here, the unfair labor practice issue is whether the Employer violated employees’ Section 7 rights by requiring employees to remove picket signs from their personal vehicles on the Employer’s property. The issue presented to the Arbitrator was: Whether management violated the parties’ contract when it required removal of Union protest signs from em- ployees’ vehicles parked on Company property. Both the un- fair labor practice and the grievance contemplate the same ac- tions by the employees, putting the picket signs in the cars and the same action by the Employer, requiring the removal of the signs. Therefore, the issues are factually parallel. In regard to your claim that the arbitrator’s award was repug- nant to the Act, the Board will not find an award is clearly re- pugnant unless it is shown to be palpably wrong, i.e., not sus- ceptible to an interpretation consistent with the Act. The arbi- trator’s finding that the collective-bargaining agreement pro- hibited picketing on the Employer’s premises and the union signs constituted picketing is susceptible to an interpretation with the Act and, therefore is not repugnant. I am, therefore, refusing to issue a Complaint in this matter, and the charges are hereby dismissed. Subsequently, Region 1 conducted a further investigation, determined that deferral to the arbitrator’s award was not ap- propriate, but dismissed the charges on the merits stating, by letter dated February 14, 2011: The Region has carefully investigated and considered the charges against Verizon, Inc., alleging violations under Sec- tion 8 of the National Labor Relations Act. The charges allege that the Company interfered with employ- ees’ rights to engage in protected concerted activities under Section 7 of the Act, by ordering employees who displayed union signs in their cars, while the cars were parked on Com- pany property, to remove them. The case was originally Collyer deferred on May 21, 2008, and the Office of Appeals denied the Union’s appeal of the deferral determination on June 28, 2008. On January 20, 2010, an Arbitrator’s Award issued in favor of the Employer, stating that the Employer acted within its rights when it required that the picket signs be removed from per- sonal vehicles in the Company parking lots. 230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On May 14, 2010, the Union submitted a position statement requesting that the Region not defer to the Arbitrator’s Award and, instead, process the case further. The Union argued that the Region should not defer to the Arbitrator’s Award be- cause: (1) The arbitrator did not consider the unfair labor practice issue; and (2) the award was repugnant o the Act. On August 27, 2010, the Region deferred to the Arbitrator’s award and dismissed the unfair labor practice charges, basing its decision upon its Spielberg/Olin review of the arbitration award. The Region determined that the proceedings were: fair and regular; the parties had agreed to be bound by the results of the proceeding; the unfair labor practice issue alleged in the charges were presented to, and considered by the arbitrator; the contractual issue was factually parallel to the unfair labor practice issue; the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice; and the award was not in conflict with the purposes or policies of the Act. Olin Corporation, 268 NLRB 573 (1984). Accordingly, the Region deferred to the award and dismissed the charge. On September 5, 2010, the Union appealed the Region’s dis- missal. Prior to a finding by the Office of Appeals, the Region conducted further investigation. Based upon that investiga- tion, I find that deferral to the Arbitrator’s Award is not ap- propriate because his conclusion that the Union’s conduct of seeking to communicate a message by displaying signs in parked vehicles constituted picketing was overly broad and, therefore, repugnant to the Act. I am, therefore, revoking my August 27, 2010 dismissal letter. I further find, however, that further proceedings on your charges are not warranted based on additional evidence obtained in the further investigation. Decision to Dismiss: Based on additional investigation, I have concluded that further proceedings are not warranted, and I am dismissing your charge for the following reasons: After further investigation, the Region found that the Union’s informational picketing against the Employer was an area- wide effort that began two weeks prior to the Employer’s pro- hibition against sign posting in employee vehicles on the Em- ployer’s property. Further, the directive to remove the signs at the locations at issue in your charges began one day prior to traditional picketing at two of the three locations at issue and within a couple of weeks at the third location. I note that the Union made and distributed the picket signs for the purpose of engaging in informational picketing, conduct the Union had a practice of engaging in prior to the expiration of prior con- tracts. Accordingly, it is reasonable to conclude that the con- duct engaged in here was part and parcel of an area-wide picketing campaign in furtherance of a labor dispute rather than the mere placement of signs in employee vehicles on Company property. This finding is consistent with the Board’s recent case on bannering. In United Brother of Car- penters & Joiners of America (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 [811] (August 27, 2010), the Board acknowledged that there are prior Board decisions finding picketing during periods when there was no patrolling or oth- er ambulation, and found those cases distinguishable because the display of stationary signs or distribution of handbills in those cases was preceded at the same location or accompanied at other locations by traditional ambulatory picketing and, in many instances, the same signs were displayed that had been utilized in traditional picketing. Accordingly, the Employer, relying on that portion of the collective-bargaining agreement in which the Union clearly and unequivocally waived the em- ployees’ right to picket on the Employer’s premises, lawfully directed employees to remove signs from vehicles parked on the Employer’s premises. I note that the Employer’s directive was narrowly tailored to restrict picketing on the Employer’s property in accordance with the parties’ collective-bargaining agreement. The Union appealed this dismissal on about March 6, 2011, and on June 2, 2011, the Office of Appeals sustained the Union’s appeal, and remanded the case to the Region with instructions to issue a complaint, absent settlement, stating only: “The Em- ployer’s prohibition on employees from displaying union signs in their vehicles located in the employees’ parking lot raised issues warranting Board determination based on record testi- mony developed at a hearing before an administrative law judge.” III. ANALYSIS The initial question here is whether the arbitrators’ decision satisfies the requirements of Olin, supra, which modified the Board’s deferral standards somewhat. In Olin, the administra- tive law judge, finding that the arbitrator had not properly or seriously considered the unfair labor practice, declined to defer to the arbitrator’s decision, but dismissed the complaint on the merits. The Board reversed, finding that the judge should have deferred to the arbitrator’s decision under the standards set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), while also setting forth more specific standards for arbitration deferral, specifically rejecting the proposition that “arbitration awards are appropriate for deferral only when the Board determines on de novo consideration that the award disposes of the issue just as the Board would have.” Rather, the Board adopted the fol- lowing standard for deferral: 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 practice. In this respect, 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” to the Act. And, with regard to the inquiry into the “clearly repugnant” standard, we would not require an arbitra- tor’s award to be totally consistent with Board precedent. Un- less the award is “palpably wrong,” i.e., unless the arbitrator’s decision is not susceptible to an interpretation consistent with the Act, we will defer. In addition, the Board placed upon the party seeking to have the Board ignore the arbitrator’s decision, “the burden of affirma- tively demonstrating the defects in the arbitral process or award.” Therefore, the issues here are whether the contractual issues as presented to the arbitrator were factually parallel to VERIZON NEW ENGLAND, INC. 231 the unfair labor practice issues and whether the parties to the arbitration litigated the facts relevant to the unfair labor practice issue, as well as the contractual issue, and whether the arbitra- tion decision was repugnant to the Act or was palpably wrong, remembering that it is the burden of counsel for the General Counsel and counsel for the Charging Party to establish that the Board should not defer to the arbitration award In Andersen Sand & Gravel Co., 277 NLRB 1204 (1985), the administrative law judge, in finding that deferral was inap- propriate, relied on the absence of any rationale in the arbitra- tion award indicating that the panel considered the unfair labor practice allegation. The Board reversed, finding that deferral was appropriate as the counsel for the General Counsel did not sustain her burden: First, it is clear that that the contractual and statutory issues are factually parallel. Indeed, as admitted by the General Counsel, the question of whether an employee may be dis- charged for violating a no strike clause is one which must be decided on a determination of the meaning and interpretation of the collective-bargaining agreement. Thus, the statutory question of whether the right to strike for less than 24 hours is protected under a 24 hour clause, or has been clearly and une- quivocally waived under the no-strike provision of the con- tract, is a question of contract interpretation. The Board found that the contractual and statutory issues were coextensive and that the arbitration panel was presented gener- ally with the facts relevant to resolving the unfair labor prac- tice. The Board stated further: Although the judge premised his decision in part on a finding that the arbitration panel did not receive or consider the law relating to the unfair labor practice, we believe the judge mis- interprets the requirements of Olin. Under Olin, the arbitrator need only be “generally presented” with the facts relevant to resolving the statutory issue. The Board concluded: In the absence of any evidence to the contrary, it is reasonable to conclude that resolution by the panel of the contractual is- sue required the same evidence relevant to resolving the un- fair labor practice issue. Therefore, because the evidence be- fore the arbitration panel was essentially the same evidence necessary for a determination of the merits of the unfair labor practice charge, we are satisfied that this requirement has been met. Finally, in response to counsel for the General Counsel’s argu- ment that the award was repugnant to the purposes and policies of the Act, the Board, at footnote 6, states: “Deferral recognizes that the parties have accepted the possibility that an arbitrator might decide a particular set of facts differently than would the Board. This possibility, however, is one which the parties have voluntarily assumed through collective bargaining.” In Specialized Distribution Management, Inc., 318 NLRB 158 (1995), four employees left their workstations without permission, in apparent violation of a number of contractual provisions. When they were called into the manager’s office, were told that they were being suspended pending further in- vestigation and were told to punch out and leave the facility, they refused to leave without a letter of explanation. Three eventually left after the security department was called, and the fourth did not leave until the sheriff’s department was called. The arbitrator found that walking off the job was not a dis- chargeable offense, but that the insubordination charge war- ranted substantial disciplinary action. He converted the dis- charges of the three who left the facility into suspensions with- out backpay and found that the discharge of the fourth employ- ee was for just cause. Counsel for the General Counsel argued against deferral, alleging that the unfair labor practice issue was not considered, and that the decision was repugnant to the Act. The judge, as affirmed by the Board deferred. Citing footnote 6 of the Board decision in Andersen, supra, the judge stated: Arbitrator Kagel has found facts that generally track those al- leged to be unfair labor practices and the General Counsel has not established that the arbitrator was lacking any evidence relevant to the determination of that issue. Moreover, Kagel found that the insubordination overrode the other considera- tions, including what might be a protected circumstance. In Laborers Local 294 (AGC of California), 331 NLRB 259 (2000), the complaint alleged that the Respondent Union vio- lated Section 8(b)(1)(A) and (2) of the Act by dispatching three individuals to jobsites, in violation of its contract and hiring hall rules, thereby bypassing other employee-registrants who were entitled to be dispatched. The relevant contractual provi- sion relating to hiring hall dispatching generally provides that referrals are in the order of registration on the out-of-work list, with certain exceptions whereby an employer may request that a specific individual be referred. The judge refused to defer to an arbitrator’s decision; the Board reversed, finding that the contractual issue before the arbitrator was factually parallel to the unfair labor practice issue: The critical point of both the contractual grievance and the un- fair labor practice was that the Respondent Union violated the hiring hall rules in making specific dispatches to Valley Fence and Fresno Paving. Thus, the arbitrator considered substan- tially the same issue as that raised by the General Counsel’s complaint. The arbitrator also had before him and reviewed the same facts that would be relevant to the unfair labor prac- tice. In Smurfit-Stone Container Corp., 344 NLRB 658, 659–660 (2005), the Board, in deciding to defer to the arbitrator’s deci- sion, further defined “susceptible to an interpretation consistent with the Act” as stated in Olin, supra: “Susceptible to an interpretation consistent with the Act” means precisely what it says. Even if there is one interpreta- tion that would be inconsistent with the Act, the arbitral opin- ion passes muster if there is another interpretation that would be consistent with the Act. Further, “consistent with the Act” does not mean that the Board would necessarily reach the same result. It means only that the arbitral result is within the broad parameters of the Act. Thus, the Board’s mere disa- greement with the arbitrator’s conclusion would be an insuffi- cient basis for the Board to decline to defer to the arbitrator’s award. 232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In Kvaerner Philadelphia Shipyard, Inc., 346 NLRB 390 (2006), the Board affirmed the judge’s dismissal of a 8(a)(3) allegation and deferred to an arbitrator’s decision upholding the discharge. The employee wrote a letter to fellow employees containing false allegations that the employer had withheld some of their pay and benefits and had earned interest for itself with the withheld money. The employee and the union con- tended that he was engaged in protected concerted activities, but the arbitrator distinguished his conduct from protected con- duct: “However, by publishing unjustified allegations of inten- tional bad faith to other employees without attempting to ascer- tain the facts, the grievant rendered himself vulnerable to the imposition of substantial discipline. There is no merit to the Union’s assertion that the grievant was engaged in protected speech or concerted action. His action recklessly publishing accusations of dishonesty for other employees to take or see is not protected speech under these circumstances” The Board, quoting from Smurfit, supra, found that the arbitrator adequate- ly addressed the unfair labor practice allegation in finding that the grievant lost the protection of the Act and that his result was not repugnant to, or inconsistent with Board precedent: “The arbitrator’s factual finding here, that Smith had acted with reck- less disregard for the truth, is not palpably wrong, and is sus- ceptible to an interpretation consistent with Board precedent. We therefore find that deferral is appropriate.” On the other hand, there are cases that go the other way, finding that the arbitrator’s decision is repugnant to the purpos- es and policies of the Act. In Garland Coal & Mining Co., 276 NLRB 963 (1985), the Board refused to defer to an arbitrator’s decision upholding the discharge of a union president who was fired for refusing to obey a supervisor’s order to sign a memo setting forth the employer’s position on an issue relevant to the union. The arbitrator found his refusal to be insubordination. The Board agreed with the judge that the discriminatee “was espousing a view and engaging in activity in support of the union’s interpretation of the collective-bargaining agreement. To find that Oldham was insubordinate under these circum- stances is not susceptible to any interpretation consistent with the Act.” Similarly, in 110 Greenwich Street Corp., 319 NLRB 331 (1995), the Board refused to defer to an arbitrator’s award upholding the discharge of an employee for engaging in con- certed activities. The employee was fired for posting signs in his car windows while the car was parked in front of the build- ing where they were employed. The signs objected to the fact that the employer was regularly late in paying the employees and that the employer should sell his expensive car and pay the employees in a timely manner. The arbitrator ruled that the “display of controversial placards in front of the building” justi- fied the discharge of the employee. The judge, as affirmed by the Board, found that “the arbitrator’s finding that the display of controversial placards is a just basis for disciplinary action is similarly misguided; the award is not susceptible to an interpre- tation that is consistent with the employees’ rights to engage in concerted activities under Section 7 of the Act” and was there- fore repugnant to the Act. In Mobil Oil Exploration & Producing, U.S., Inc., 325 NLRB 176 (1997), the discriminatee/charging party had an ongoing dispute with the union president, alleging that he was working at another job while allegedly conducting union busi- ness, and he reported the situation to his (and their) employer. The employer told him that he would investigate the allega- tions, but that it was confidential, and that he was not to discuss it with anyone. Shortly thereafter, he was overheard discussing the investigation with fellow employees and he was fired for improper interference with the investigation and for insubordi- nation. The arbitrator upheld the discharge finding that the Charging Party was insubordinate by not complying with the instructions that he received to keep the investigation confiden- tial. The Board refused to defer to the arbitrator’s award: We agree with the General Counsel that the arbitration award is palpably wrong and repugnant to the Act because the pre- cipitating event that caused Pemberton’s termination was his exercise of protected concerted activities. Because the arbitra- tion award upholds Pemberton’s discipline based on his pro- tected concerted activities, we find that deferral to the award is inappropriate and that the Respondent violated Section 8(a)(1) as alleged. The initial requirements of Spielberg and Olin have clearly been met as the proceedings appear to have been fair and regu- lar and all parties agreed to be bound by the arbitrator’s deci- sion. I also find that the arbitrator was presented with the facts relevant to resolving the unfair labor practice issue and ade- quately considered the unfair labor practice issue, which was factually parallel to the contractual issue. The panel discussed all the relevant contractual terms, interpreted them and deter- mined (right or wrong) that the signs in the car windows violat- ed these contractual provisions and that the Respondent’s direc- tives to the employees to remove the signs did not violate the contract. The decision concluded by saying that the arbitration panel did not have the authority to resolve the issue of whether the management directive infringed on employees’ Section 7 rights, and the panel was correct. That is a Board function to resolve and, if appropriate, to correct. The final issue in determining whether to defer to the arbitra- tion ruling is whether counsels for the General Counsel and the Charging Party have sustained their burden that the arbitrator’s decision is repugnant to the Act, or palpably wrong. I find that they have not. Counsel for the General Counsel, in his brief, forcefully argues that the Respondent’s direction to the em- ployees to remove the signs from their vehicles was unlawful because the no-picketing provision contained in the contract did not “clearly and unmistakably” waive the Union’s statutory right to engage in lawful informational picketing. Citing a recent case, Carpenters Local 1506 (Eliason & Knuth of Arizo- na, Inc.), 355 NLRB 797 (2010), counsel for the General Coun- sel also argues that the signs in the employees’ vehicles did not constitute picketing and, further, for a stationary sign to qualify as picketing there must be an element of confrontation. Alt- hough these arguments may be correct, that is not helpful in sustaining his burden here. More to the point is the argument made by counsel for the Respondent: “There is nothing in Board law that prevents an arbitrator from interpreting the word ‘picket’ in a collective bargaining agreement provision prohib- iting picketing more broadly than the Board would in an unfair VERIZON NEW ENGLAND, INC. 233 labor practice case not involving such a provision. This is es- pecially so given the vacillations in Board precedent over the definition of ‘picketing’ under the Act.” In Bell-Atlantic- Pennsylvania, Inc., 339 NLRB 1084, 1087 (2003), the employ- er prohibited its employees with customer contact from wearing “Road Kill” shirts which it felt reflected negatively on its image and employees who failed to comply with this directive were suspended for one day without pay. The arbitrator sustained the punishment, finding that the employer reasonably could believe that observing the employees wearing the shirt would unsettle the public. In deferring to the arbitrator’s decision, the Board stated that they could not say that the arbitrator was “palpably wrong” in striking the balance of interest as he did: In short, we find that although the Road Kill shirt was protect- ed under Section 7, it was not repugnant or “palpably wrong” for the arbitrator to find that employees’ Section 7 interests may give way to the Respondent’s legitimate interests in pro- tecting its public image under the circumstances of this case. I therefore find that although the Board, upon hearing this case de novo might have reached a different conclusion than that reached by the arbitrator, finding that the signs in the vehi- cle windows was not picketing and were protected, the arbitra- tor’s decision was neither repugnant to the Act nor was it pal- pably wrong. I would therefore defer to the arbitrator’s deci- sion, and recommend that the complaint be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The arbitrator’s decision should be deferred to, and there- fore the Respondent did not violate Section 8(a)(1) of the Act as alleged in the complaint. [Recommended order omitted from publication.]