Koppel, Inc.

KO)PPEL, INC. Koppel, Inc. and John Gyerman. Case 21-CA- 18110 August 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELI.O On May 14, 1980, Administrative Law Judge Jay R. Pollack issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed cross-exceptions, a supporting brief, and a brief in answer to the General Counsel's excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. MEMBER PENELLO, concurring in the result: I would defer to the arbitration award herein. See, e.g., my dissenting opinion in General Ware- house Corp., 247 NLRB No. 142 (1980). ' The General Counsel has excepted to certain credibility findings made by the Admillstl-aiise Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spcct to credibilit) unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc. 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing his findings In his Decision, the Administrative Law Judge incorrectly states that Almeida obtained a copy of the minutes on March 23. 1979, showing Gyerman's re-registration. Almeida's testimony indicates that this oc- curred sometime earlier, during the first pait of the month This finding is insufficient to affect the results reached herein DECISION STATEMENT OF THE CASE JAY R. POLLACK. Administrative Law Judge: This case was heard before me at Los Angeles, California, on January 31, 1980, pursuant to a complaint and notice of hearing issued on October 16, 1979, by the Regional Di- rector for Region 21 of the National Labor Relations 251 NLRB No. 96 Board. The complaint, which alleges violations of Sec- tion 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act, is based on a charge filed on August 20, 1979, by John Gyerman, an indiidu- al, herein called Gyerman, against Respondent, Koppel, Inc.I Issues The primary issues are: 1. Whether Respondent violated Section 8(a)(3) and (1) of the Act on or about April 17. 1978, by discontinu- ing to utilize Gyerman as a "steady" employee because Gyerman complained to the Union and the State of Cali- fornia Occupational Health and Safety Administration (Cal OSHA) regarding safety conditions and other work- ing conditions. 2. Whether the Board should defer to an arbitrator's decision of June 14, 1979, which upheld Respondent's position that Gyerman should be returned to the joint dispatch hall. All parties have been afforded full opportunity to par- ticipate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. Based upon the entire record, upon the briefs filed by counsel, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS oFt FACT I. JURISDICTION At all times material herein, Respondent has been a California corporation engaged in the operation of a bulk cargo terminal facility located at the Long Beach Harbor in Long Beach, California. During the past 12 months Respondent performed services in excess of $50,000 for customers located within the State of California. each of which, in turn, sold and shipped goods and products valued in excess of S50,000 directly to customers located outside the State of California. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. It. THE LABOR OR(iANIZATION INVOI VEt) The complaint alleges, the answer admits, and I find that at all times material herein Local 13, International Longshoremen's and Warehousemen's Union, herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act. IIt. THE ALIEGED UNFAIR I.ABOR PRACIiCI S A. Background Respondent and the Union have been parties to a series of collective-bargaining agreements since 1962. It is undisputed that the Union and Respondent have en- joyed a good-working relationship since that time. In The name (of Respondent appears as amended ia the hearing Koppel, Inc. and John Gyerman. Case 21-CA- 507 568 I)DECISI()NS ()OF NATIONAL LABOR RELATIONS BOARD November or December 1969, Respondent hired Gyer- man at the Union's request. Gyerman first went to work for Respondent in a part- time capacity and subsequently became a full-time em- ployee in January 1970. He worked full time until he suf- fered a work-related injury in December 1972. Gyerman went back to work for Respondent in May 1977 as a result of an agreement reached through mediation; the terms of said agreement are material to the resolution of the issues herein, and are discussed in detail below. Gyerman was laid off in October 1978, and, as a result of intervention by the Union on his behalf, Gyerman re- turned to work for Respondent in November 1978. On or about April 17, 1979, Respondent, in a meeting with the Union, informed Gyerman and the Union that based on the mediated agreement of May 1977 Gyerman would be returned to the dispatch or hiring hall operated jointly by the Union and the Pacific Maritime Association (PMA). The parties were unable to reach agreement on this proposed action of Respondent and the dispute was brought to arbitration pursuant to the collective-bargain- ing agreement then in effect. An arbitration was con- ducted on June 12, 1979, before a mutually selected arbi- trator. At the arbitration, the Union, Gyerman, and Re- spondent were provided a full opportunity to present evidence, to call witnesses, to examine and cross-examine xwitnesses, and to submit documentary evidence. No tran- script of the arbitration proceeding was made. On June 14, 1979, the arbitrator issued an opinion and decision concluding that "the Company's motion that Gyerman be returned to the Joint Dispatch Hall as per mediation agreement of May 6. 1977, be sustained," and that "Gyerman be returned to the Dispatch Hall at the end of his regular work shift, Friday, June 15, 1979." Thereaf- ter, Gyerman, who was not working due to an injury, was returned to the hiring hall. B. Gyerman ' Complaints Regarding Safety and Working Conditions Gyerman was an alternative steward for the Union on the day shift in March and April 1979, when Cal OSHA conducted a safety inspection of Respondent's terminal. On April 4, 1979, the regular steward was absent and, therefore, Gyerman. as alternative steward, was request- ed to accompany the Cal OSHA inspectors on their safety inspection. Respondent's management was repre- sented by Tom Mogan, then Respondent's grain superin- tendent. When he was first invited to accompany the Cal OSHA inspector, Gyerman asked Robert Boyle, the in- spector in charge, if the car pit area in which Gyerman worked would be inspected. Boyle answered that the car pit area would be inspected later that day. When he inspection group reached the car pit area, Gyerman pointed out a safety problem in the way that the doors of rail cars were opened and closed while cars were moving. Gyerman also mentioned a safety problem in the manner in which the automatic car mover was op- erated, i.e., the employee setting cars in motion could not see the end of the train and could not see any employee who might be on the other side of the train. Three or four other employees working in the area also brought safety problems to the attention of the Cal OSHA in- spector and engaged in discussions concerning safety problems. Gyerman accompanied the inspectors for 8 hours on April 4, but did not accompany them on any of the other 5 days of inspection. At the end of the inspec- tion the Company was cited for 25 violations, which in- cluded those concerning the car pit area. Respondent complied with Cal OSHA's findings and took the neces- sary corrective action. On April 5 Respondent's automat- ic car mover broke down and the Company began using a train to move its cars through the car pit area. The Company used one man to drive the train, and this re- duced the crew in the car pit area from four to three em- ployees. Gyerman complained about the crew reduction to Foreman Ray Cusolito and Tom Mogan. Mogan said a three-man crew was sufficient and called Art Almeida, manager of labor relations,2 to discuss the matter with Gyerman. Almeida listened to Gyerman's complaint, left Gyerman to talk to Mogan and Harold Plaisted, assistant vice president, and returned to tell Gyerman that the Company would put a fourth man in the car pit area. On April 6, after the automatic car mover had again broken down, Respondent reactivated the train and used a man from the car pit area. Gyerman again complained to Cusolito and Mogan about the reduction in the crew, from four to three, in the car pit area. Mogan again called Almeida to discuss the problem with Gyerman. According to Gyerman, Almeida asked. "What are you doing, trying to cause trouble for us?" and said, "You got to give us a break on some of these things." Further, according to Gyerman, Almeida asked why Gyerman was causing trouble for the Company after all it had done for him. : At that time Dave Schmidt, the steward, approached and asked Almeida if he was trying to black- mail Gyerman.4 Almeida denied trying to do any such thing. Almeida did not deny this testimony, rather he ex- plained that he became angry when Gyerman questioned his integrity on the ground that Almeida, a former union official, was now working for and speaking for manage- ment. I credit Almeida's explanation of this incident,5 Almeida again discussed the manning of the car pit area with Plaisted and Mogan. Shortly thereafter, he told Gyerman that the Company was going to continue to use a three-man crew. Not receiving satisfaction, Gyer- man called the Union and within the hour Dave Arian, a relief business agent, arrived at the terminal to meet with Gyerman. After a brief discussion of the problem, Gyer- man and Arian sought out Plaisted, Mogan, and Al- meida. Arian asked Gyerman to explain his "beef" to the company officials. After a caucus of the company repre- sentatives, Almeida stated that Respondent would in- crease the crew to four but in doing so the Company ' Almeida as presidenlt of the Union from April 1976 ro April 1978. Hle became manager of labor relations I'or Respondent in November 1978 : What Almeida meant by this question will be explained in the section Of his Decision entitled "Respondenl's Defense." Schmidt was nt called 1t testlify at the hearing 5 Almeida testified in a straightforward and convincing manner. He candidly gave testimony which as, at times, not favorable to his em- ployer's position Such admissions add to his credibility as a witness. --- ---- K()'PP'EL, INC. 560 was not prejudicing its right to seek a manning review in the future.s C. Respondents Alleged Refusal 7b Utilize Gverman as a "Stead' Emplovee" On April 17, Gyerman was called to a meeting \which, unknown to him, concerned his status as an employee of Respondent. Representing the Union and Gyerman were: Gyerman, Lou Loveridge, union president; Raoul Oli- vera, secretary treasurer of the Union, Wayne Robbins, business agent, and Dave Schmidt, shop steward. Repre- senting Respondent were: Mogan, Plaisted, Almeida, and Cusolito.7 There is virtually no conflict in the testimony concerning what took place at this meeting. Almneida, acting as spokesman for Respondent. produced the agreement reached as a result of mediation in May 1977. and stated that Respondent wished to enforce the agree- ment, i.e., return Gyerman to the joint dispatch hall.8 Gyerman and Loveridge both denied having seen the agreement prior to the meeting. While Loveridge was re- viewing the agreement, Gyerman accused Respondent of retaliating against him because of the manning dispute in the car pit area. Almeida denied the accusation and stated that Respondent had lived up to its agreement and wanted the Union to do the same. Loveridge proposed a compromise: that Gyerman return to the hall and that Respondent immediately request that Gyerman be dis- patched to its terminal. Almeida rejected the offer stating that Respondent had the right to do so but was not going to so restrict itself at that time. The meeting ended without resolution of the dispute. 6 The collectie-bargaining agreement provided for a review 1of nmall ning by a joint labor relations committee. In fact. in June 179. the manl- ning requirements of the car pit area were eviewved and resulted in a re- duction in the crew 7 Cusolito. Gyerman's foreman, was also a member of he Union T'here is no eidence a 1to whether Cusolito was a superis or or agent of Respondent However, such a determination is not material to a resolu- tion of the issues herein N The mediation agreement, dated May 10, 1977. signed by Art A Al meida for the niin, Curt Johnson, the mediator, and Harold L Plasited and Bruce F Harmon for the Employer, provides: Mr John Gyerman would report for work 08(X) Friday. May , 1977. I. Mr (Gyerman will conduct himself in a proper manner with due respect to his employer 2 The committee also agreed that the employment of Mr John Gyerman shall not disturb in any respect the seniority status of the presently emplosed men at Koppel Bulk Terminal. 21(1 211 Long Beach. 3 The parties agreed that w hen John GOerman becomes a jointly registered longshoreman he shall return to the joint dispatch hall If the employer chooses to rehire John Gyerman they may place, at their option, an order calling for the dispatch of John Gyerman 4 he employer does not concede that the employment of John Gyerman shall il any manner disturb the now existing seniorit) list of employees 5 If work does nol warrant the employ)menl of any eniployee due to the following conditions: A Lack of cargo, etc B Consiruction f new and existing facilities The employer reaf- firmns hi rights io laS-off ad rehire as provided for under the agreement belweel te parties 6. here shall be no dscrimination against the employee or the emptoer Almeida testified that he called Loveridge ol or ahout Mlarch 23, 1979,. to arrange a neetitng to discuss Gier- man's status. Initially. I.oeeridge stronigl denied that Al- mcida called him prior to August 6 to arrange the mcetl- ing. However, on cross-examination, L.overidge's denial became less convincing. He admitted having a uiol caucus and a union coniventiotn during the saltC limnl period. He further admitted having many other itmatters to attend to. He could find no record of the calls or even the meetings concerning this matter and he did not check the Union's files regarding Gyerman's dispute .ith Respondent. In contrast to Loveridge's vague recollec- tion. Almeida testified in a convincing malnner that on or about March 23, after being informed by Roger Nlihre. Respondent's vice president, of the Company's intent to enforce the May 10 agreement, he called l .overidge to set up a meeting. I overidge said he wkould call Alntieida back after acquainting himself .,itlh the dispule. I.o cr- idge did not call bhack. and Almeida again called to ar- range a meeting. Loveridge did not specifically den Al- meida's testimony and I was not imprcssed by his agtie denials. I therefore credit the testimotny of Alhnieida. whom I find to be an impressive and credible v.ilness. that he called l.overidge on or about March 23. to ar- range for a meeting to discuss Gyerman's status ith Re- spondent. A second meeting. at Respondeit's request. vas held on May 21 to discuss Gyerman's return to the hiring hall. Gyerman, absent from work due to an injury, was not present at this meeting. The parties ere still unable to reach agreement, and Almeida requested that tile matter be put before an arbitrator. 1). 7he .-Irhitraliop Proceeding The parties mutually agreed to the selection of George Love as the arbitrator of the instant dispute. Love is an experienced arbitrator in the longshore industry and has work experience in the industry. Further. Lo e is a former union official. The arbitration was conducted before Love on June 12. The parties were not represelt- ed by attorneys. However, all parties were given an op- portunity to present witnesses, cross-examine witnesses. submit documentary evidence, and argue orally. No tran- script of the arbitration proceeding was made. There is no dispute that at the arbitration proceeding Gyerman argued that Respondent was attempting to return him to the dispatch hall because of his complaints to Cal OSHA and/or because of his role in the manltlring dispute. Moreover, Loveridge argued that Respondent and the Union had no authority to negotiate awaN Gver- man's rights. Almeida argued that Respondent had colil- plied with its obligations under the agreement and that the Union and Gyerman had to satisfy their part of the agreement. At the end of the proceeding Arbitrator Love stated that he would consider all the evidence and arguments in rendering his decision. On June 14, 1979, Arbitrator Love issued a written four-page opinion and decision finding that Gyerman should be returned to the dispatch hall on June 15. 1979. Arbitrator Love's decision made no mention of Giyer- man's claims of retaliation for the complaints to Cal KOPPEL. IC. evl 570 DE{CISIONS OF NATIONAL I ABOR RELATIONS BOARD OSHA or for the complaint concerning manning of the car pit area. Rather, Love, stated: This dispute involves a question of whether Mr. Gyerman's employment with the Company, was conditional by mutual consent, or if he was em- ployed via regular procedures as outlined in the contract, and therefore his employment governed by all terms of the contract, including termination provisions. In sum, Arbitrator Love found that the mediation agree- ment was valid and binding and, therefore, ruled that it could be enforced to return Gyerman to the joint dis- patch hall. Subsequently, on August 20, Gyerman filed the instant charge alleging a violation of Section 8(a)(1) and (3) of the Act. E. Respondents' Defense Respondent's defense as to the merits of the instant dispute requires a factual recitation of Gyerman's em- ployment history. Gyerman first began working as a longshoreman on the waterfront in the Long Beach-Los Angeles Harbor area in 1960. In 1969, Gyerman was convicted of pilferage and as a result was deregistered as a longshoreman. 9 Gyerman was, therefore, unable to work in the industry.' 0 Curt Johnson, then president of the Union, obtained employment for Gyerman by making a personal appeal to George Koppel, then Re- spondent's president and majority shareholder. Koppel had on other occasions employed "deregistered" long- shoremen as a "favor" to the Union. l Thus Gyerman went to work for Respondent as a part-time employee in November or December 1969. Gyerman became a full- time employee in January 1970 at Respondent's Cerritos facility. Gyerman suffered a work-related injury in 1972, anid did not attempt to return to work for Respondent until Merch 1977. By March 1977, Respondent's Cerritos facility at which Gyerman had worked had been closed. Respond- ent took the position that Gyerman did not have senior- ity, was not a registered longshoreman, and should not be returned to work. Gyerman filed a grievance with the Union. Almeida, on behalf of the Union, and Plaisted and Bruce Harmon, agreed to submit the dispute to a mediator. By agreement of the parties the dispute was mediated by Curt Johnson, then a former union presi- dent, whose role was to aid the parties in resolving their EFmplolmnent i he longshore industry, the west coast ports, for the most part, is governed by the collective-bargaining agreements between the ILWD and PMA, a multiemployer trade association which represents almost all employers in the industry for purposes of collective bargaining Under the collective-bargaining agreements a joint dispatch hall is maintained for "registered" longshoremen A "deregistered" longshore- man cannot use the joint hiring hall except as a casual (for daily assign- ments) o Gycerman on cross-examination refused to admit that he was deregis- tered by the joint dispatch hall Gyerman testified that he was deregis- tered by P'MA but was registered with the Union Such testimony is con- trary to documented fact and detracts from Gyerman's credibility as a witness i] It is noted that all collectise-bargaining agreements beltween Re- spondent and the Union govern the terms and conditions of employment of 'registered longshoremen" dispute. Johnson had no authority to decide the matter, only to aid in a resolution prior to arbitration. On May 5, Johnson, Gyerman, Almeida, Harmon, and Plaisted met and reached agreement on Gyerman's return to work for Respondent. The parties agreed that Gyerman would return to work May 6, the next day, and that the parties would meet on May 10 to sign an agreement embodying the terms and conditions of Gyerman's return to work. The agreement provided, inter alia, that when Gyerman became a jointly registered longshoreman he should return to the joint dispatch hall.' 2 Gverman returned to work on May 6, and on May 10 the parties executed their written agreement. Almeida testified that shortly after May 10 he gave Gyerman a copy of the written agreement. Almeida fur- ther testified that Gyerman was satisfied \with the agree- ment as Gyerman's expressed desire was to again be dis- patched as a registered longshoreman. Gyerman did not deny expressing such a desire but testified that he had never seen the signed agreement until April 17, 1979. As discussed above, Almeida was an impressive witness. Further his version of these events is more probable than that of Gyerman. I, therefore, find that Almeida gave Gyerman a copy of the agreement in May 1977. Gyerman's return to work in May 1977 was unique in that he was neither a "steady" employee nor dispatched from the hiring hall. When Respondent needed employ- ees, Mogan would call Almeida who would first dispatch Gyerman, and then have the remaining number of em- ployees requested dispatched from the hall. This proce- dure was followed for several months until there was sufficient need for employees on a regular basis. t In September 1976, in preparing for a reduction in force, Roger Myhre. vice president of operations, re- quested and received a seniority list of Respondent's em- ployees. Tom Mogan prepared a seniority list for Myhre which listed Gyerman on the bottom of the list with a question mark alongside the employee's name-instead of a seniority date. Mogan informed Myhre that he did not know what seniority to give Gyerman and was told by Myhre to treat Gyerman as the least senior employee. Thus, in October 1978, Gyerman was laid off along with two other employees. Gyerman brought his layoff to the attention of the Union, but, Respondent, based on Myhre's orders, stood firm. Thereafter, in an attempt to have Gyerman reinstat- ed, Union President Loveridge contacted both George Koppel, Respondent's president, and Art Alnieida, former union president, at that time working as a long- shoreman. Almeida intervened at Loveridge's request and was able to persuade Respondent to take Gyerman back, based on the May 1977 agreement. Myhre agreed to take Gyerman back on the conditions that: he receive no backpay; his seniority date back only to 1977; and that the May 1977 agreement remain in effect. Further, " At the time of the mediation. German and Almreida were attempt- ing to have Gyerman reregistered by the Coast Labor Relations Commit- tee The attempts to have Gyerman reregistered were unsuccessful until February 23. 1979 I: 1 credit the testimiono of Mogan and Almeida who both testified in a straightforward and candid manner. To the extent that (iserman denied receiving more than oine dispatch call from Almeida, he is not credited. K()OPPEL INC Myhre requested that, to protect the Company from legal action bh any adversely affected employee, the Union give Respondent a written agreement holding it harmless from any such action. Almeida agreed to these conditions. 4 Gyerman returned to work in November 1978. On or about February 23, 1979, Almeida, then em- ployed as Respondent's manager of labor relations, re- ceived a phone call from a union official telling him of Gyerman's reregistration. Almeida notified Myhre of this call and Myhre asked Almeida to obtain written confir- mation of this action. Shortly after receiving this phone call, Almeida congratulated Gyerman on the reregistra- tion. Almeida testified that he congratulated Gyerman at work near the grain elevator." Almeida happily con- gratulated Gyerman and expressed the opinion that Gyerman should stay with Respondent but said the deci- sion was up to Gyerman. On or about March 23, Almeida received a copy of the minutes of the Coast Labor Relations Committee granting Gyerman's reregistration request. Almeida brought the minutes to Myhre as requested. Myhre told Almeida that he wanted the Union to fulfill its obliga- tions under the May 10, 1977. agreement. Almeida told Myhre that he would set up a meeting with the Union. and shortly thereafter called Loveridge for that purpose Analysis and Conclusions 1. The deferral issue Respondent contends that the Board should defer to Arbitrator Love's award under the doctrine of Spielberg Manufacturing Company, 112 NLRB 1080 (1955). Gener- al Counsel argues that the Board should not defer to the arbitration award on the ground that the arbitrator did not consider, and failed to pass on, the statutory issues. In Spielberg, supra, the Board stated as a matter of policy, and in furtherance of the desirable objective of encouraging voluntary settlement of labor disputes, it would recognize and defer to awards of arbitrators where: (a) the arbitration proceedings are fair and regu- lar; (b) the parties to the arbitration have agreed to be bound by the arbitrator's decision; and (c) the arbitration decision is not repugnant to the purposes and policies of the Act. Added later in Raytheon Comnpany, 140 NLRB 883 (1963), was the criterion that the arbitrator must have considered the unfair labor practice issue and ruled on it. In Electronic Reproduction Service Corp. Madison Square Offset Company. Inc., and Xerographic Reproduc- tion Center, Inc., 213 NLRB 758, 762 (1974), the Board stated it would in the absence of "unusual circum- stances" defer under Spielberg to arbitration awards deal- ing with discharge or discipline cases even where no in- 4 Respondent never receied a "hold harmless' agreement , Ciyerman estificd that Alineida called him to congratulate him oln the reregistratioll and requllcd him to sIla silh Respondent Gvarinlll lestified that Alineida said Ihc Cotmpalny needed his experience and that Gyerman c.ould make more mone h remnalnibg ith Respondellt A, discussed ahboe. Alnicida;l as a more rcredible saltncr than (Gi trllal. Further. Alneida admils, that he cxpressed the opinion Ihll (isrnia should remain iIh KRpondnil Thts, I credit Almeida', xcril O If the coilnvrsatioal dication existed as to whether the arbitrator had consid- ered, or had been presented with, the unfair labor prac- tice issue involved. The purpose of such a rule as to encourage contractual efforts at dispute seltlement by preventing "two bites at the apple." However, the Board has recently overruled Electroic Reproduction in Siubur- ban Motor Freight. Inc., 247 NLRB No. 2 (1980), wherein the Board stated: The Board can no longer adhere to a doctrine which forces employees in arbitration proceedings to seek simultaneous vindication of private contrac- tual rights and public statutory rights, or risk waiv- ing the latter. Accordingly, we hereby expressly overrule Electronic Reproduction and return to the standard for deferral which existed prior to that de- cision.7 In specific terms, we will no longer honor the results of an arbitration proceeding under Spiel- berg unless the unfair labor practice issue before the Board was both presented to and considered by the arbitrator. In accord with the rule formerly stated in Airco Industrial Gases we will give no deference to an arbitration award which bears no indication that the arbitrator ruled on the statutory issue of discrimination in determining the propriety of an employer's disciplinary actions. In like accord with the corollary rule stated in Yourga Trucking, e shall impose on the party seeking Board deferral to an arbitration award the burden to prove that the issue of discrimination was litigated before the arbi- trator. I See Yourga lrucking. Inc., 197 N[.RI 2 119 72): .rio Intdu- trial Garel-Pacific. a Dlsioon of.4ir Redumton ('opran lmInorporat- ed, 195 NL RB 676 (1972). Ravtheon Comparny. 141() N R 883 (1963) .Monsanto Chemical Conmpany. 130 NI R 1()7 (I 61) Respondent contends, and I agree, that: (a) the arbitra- tion proceedings were fair and regular; (b) the parties to the arbitration had agreed to be bound by the arbitrator's decision; and (c) the arbitrator's decision is not repugnant to the purposes and policies of the Act. The critical issue is whether Arbitrator Love's statements at the hearing, that he would consider all the evidence and all the argu- ments, and subsequent sub silentio rejection of Gyerman's arguments in his decision. are sufficient "indication" that the arbitrator ruled on the statutory issue of discrinmiia- tion in determining the propriety of Respondent's motive in enforcing the May 1977 agreement. The Board's decision in General Warehouse Corp., 247 NLRB No. 142 (1980), issued since Suburban Motor Freight, leads me to conclude that the Board would not defer to the arbitrator's award in the instant case. In General Warehouse, the Board majority (Member Penello dissenting) found deferral inappropriate under circum- stances where evidence of the discriminatee's protected activities was presented but the arbitrator made no refer- ence to such evidence in his decision. nor did lie make any findings concerning the acti ities as they may have related to the discharge. In the instant case, the arbitrator's written decision provides no basis for concluding that he gave any coni- 571 5s72 I)ECISIO)NS O)F NATI()NAL. LABOR RELATIONS BOARD sideration or weight to the issue of whether Respond- ent's enforcement of the May 1977 agreement was moti- vated bh unlawful considerations. Thus, the case falls within tile controlling purview of Suburban Motor lreighl and General Warehouse Corp. I do not believe that the arbitrator's statement, that he would consider all the evidence, sufficient to change the result herein. I, therefore, conclude that deferral to the instant arbitration award is not appropriate. 2. The alleged discrimination against Gyerman The General Counsel contends that Respondent's en- forcement of the May 1977 agreement was in retaliation for Gyerman's protected concerted activities in making complaints to Cal OSHA, to Respondent and to the Union on April 4, 5. and 6, 1979. Initially, the record conclusively establishes that, in raising safety problems during the Cal OSHA inspection, Gyerman was engaged in protected concerted activity. Wayne Trophy Corp., 236 NLRB 299, 308 (1973); Alleluia Cushion Co.. Inc., 221 NLRB 999, fni. 2 (1975). Similarly, in pressing for a four- man crew in the car pit area, Gyerman has engaged in activity protected by Section 7 of the Act. The Union Fork and Hloe Company, 241 NLRB 907 (1979); Blount Brothers Corporation, 230 NLRB 586, 596 (1977); Morri- son-Knudsen Company, Inc., 213 NLRB 280, 290 (1974). See Bunney Bros. Construction Co., 139 NLRB 1516, 1519 (1962). Thus, the critical issue is whether Gyerman's protect- ed concerted activities were a motivating factor in Re- spondent's enforcement of the May 1977 agreement. Thus, General Counsel argues that Respondent had no intention of returning Gyerman to the joint dispatch hall until Gyerman made complaints about safety and work- ing conditions on April 4, 5, and 6, 1979. In my view, the record establishes conclusively that Respondent had, since May 1977, consistently intended to return Gyerman to the dispatch hall upon his reregistration by the Coast Labor Relations Committee. The timing of the April 17 meeting, coming so soon after the protected concerted activities, raises a suspicion of a causal relationship between the activities and the en- forcement of the May 17 agreement. However, I have found that Almeida sought to arrange such a meeting on or about March 23, 1979, prior to the activities at issue. Such a finding precludes a conclusion that Respondent had no intention of returning Gyerman to the joint dis- patch hall until Gyerman made complaints about safety and working conditions. Surely it would defy logic to find that the refusal to continue to utilize Gyerman as a "steady" employee was in retaliation for protected activi- ties which occurred after the decision was made. See Mantac Corporation and Tackett & Manning Coal Corpo- ration, 231 NLRB 858 (1977); and Brown Manufacturing Corporation, 235 NLRB 1329, 1334 (1978). Prior to the May 1977 agreement, Respondent had contended that Gyerman had no seniority with the Com- pany. It agreed to reemploy Gyerman under conditions which indicated that it still maintained the position that Gyerman had no seniority. Prior to the layoff of October 1978, Respondent listed Gyerman on its records as having no seniority. When Gyerman grieved his layoff, Respondent had a legitimate concern that other employ- ees, adversely affected, might pursue legal action based on preference granted to Gyerman. The Company finally relented and recalled Gyerman on condition that the Union hold the Company harmless in the event that such legal action was taken, and on the further condition that Gyerman return to the dispatch hall when he became reregistered. Thus, Respondent's intent to return Gyer- man to the hall was consistently established almost 2 years prior to the April 17 meeting. In the context of record evidence establishing that Re- spondent and the Union have enjoyed a good working relationship, there is no evidence that Respondent har- bored any animosity against union or protected concert- ed activities. The record reveals that Respondent amica- bly settled the manning dispute with the Union. Further, Respondent fully complied with the Cal OSHA report and remedied all violations. The animus expressed by Al- meida against Gyerman was not based on the employee's complaints about working conditions, but rather was based on the accusation that Almeida was an "ogre" for working in management. Finally, Almeida's suggestion in February that Gyer- man remain with Respondent, and his apparent reversal in April, is fully explained by the circumstances. In Feb- ruary, Almeida, genuinely happy and proud that the re- registration he had personally worked so hard for, had finally reached fruition. Under such circumstances, it is understandable that Myhre, as he so testified, did not want to immediately tell Almeida to send Gyerman back to the hall. However, when Almeida obtained a copy of the reregistration, Myhre instructed him to comply with the May 1977 agreement, and return Gyerman to the hall. Because of his intimate involvement with the situa- tion, Almeida sought to arrange a meeting to inform Gyerman and the Union of the proposed action. Re- spondent did not send Gyerman back to the hall until after its motion to do so was granted by the arbitrator. Thus, I find, contrary to the allegations of the complaint, that Respondent did not discontinue to utilize Gyerman as a "steady employee" because Gyerman engaged in union activities or other concerted activities protected by Section 7 of the Act. Upon the foregoing findings of fact, and the entire record, I make the following: CONCI USIONS o LAW 1. Respondent, Koppel, Inc., is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 13, International Longshoremen's and Ware- housemen's Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(a)(3) of the Act, as alleged in the complaint. 4. Respondent did not violate Section 8(a)(1) of the Act, as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to K()OPPEL. INC Section I10c) of the Act, I hereby issue the following recommended: 16 All motions inconsistent %,ith this recommended Order are hereby denied. In the event no exceptions are filed as provided by Sec 102 4,h of the Rules and Regulations of the National abor Relations Board, the findings, conclusions, and recommended Order herein shall, as prr\ovided in Sec 102.48 of the Rules and Regulations. be adopted by the Board and ORDER' 6 It having been found and concluded that Respondent Koppel, Inc., has not engaged in unfair labor practices. the complaint is dismissed in its entirety. hbecome Its findings. conclusions. and ()rder. and ill i bhlet'lon thercelo shall be deemed s aled for ill pulrp.ses