APPLICATION FOR ENFORCEMENT NATIONAL LABOR RELATIONS BOARD BOARD NO. 22-CA-8635
Before Aldisert, Hunter and Higginbotham, Circuit Judges.
The National Labor Relations Board (hereinafter the "Board") petitions this court for enforcement of its February 14, 1980 order against General Warehouse Corporation (hereinafter the "Company").*fn1 The Board found General Warehouse in violation of sections 8(a)(1) and (3) of the National Labor Relations Act (hereinafter the "Act")*fn2 for retaliating against its employee, John Coon, for engaging in protected union activities. It therefore ordered respondent, General Warehouse, to cease and desist from its unfair labor practices and to reinstate Coon with back pay. Respondent contends that the Board's order should not be enforced because the Board failed to defer to an arbitrator's award that ruled that there was "just cause" for Coon's dismissal; alternatively, respondent argues that there is insufficient evidence on the record to support the Board's findings. We hold that because the arbitrator's decision addressed only the contractual questions in the dispute and not the statutory issues brought before the Board, it was not an abuse of discretion for the Board to refuse to defer to the arbitrator. We also conclude that there is substantial evidence on the record to support the Board's unfair labor practices findings. Accordingly, we will enforce the Board's order.
The events leading to the unfair labor practices in this case began in January, 1978. At that time, General Warehouse's Executive Vice-President, Philip Fine, held a meeting with the Company's employees. He asked the employees to waive their contractual right to bid on work to be performed in a new warehouse.*fn3 John Coon, a warehouseman for General Warehouse, attended the meeting but did not participate in the discussion. After the meeting, Fine approached Coon and asked him to "speak to the men and try to get across to them how important it was that (they) agree to (give) up the bid." Coon declined. He had battled with the Company before in a 1976 campaign to collect contractual wage increases that the employees had been persuaded to waive. When he told Fine that he would again oppose the Company, Fine informed Coon that the Company considered him to be a "troublemaker" and "instigator."
Soon thereafter, in March, 1978, the President of General Warehouse, Michael Goldfarb, called another meeting of the warehouse employees. He told them that due to the high cost of energy and the Company's poor financial condition, he could not afford to pay the 38-cent-an-hour cost of living increase provided for under the collective bargaining agreement. He asked the employees to waive the increase due to take effect on April 1, 1978. Goldfarb said he had owned a company in the past where he had labor trouble, that he had closed the business, and that he could do it again. He also told the employees that if they did not waive the cost of living increase due to them, he would close down the Company and open elsewhere.
At least five employees, including Coon, spoke out against waiving the increase. Coon said that the employees were also suffering from inflation and that they were not to be blamed for the Company's unfavorable position with its competitors. He insisted that Goldfarb live up to the contract he had signed.
Coon continued to voice his opposition to a waiver of the cost of living increase through the end of March. On March 30 or 31, the Company polled the employee units on their position.*fn4 The waiver proposal was defeated.
Immediately upon the defeat of the waiver issue, General Warehouse changed its work assignment policy. Ordinarily, General Warehouse would assign employees to unload Wrigley freight cars, an arduous job described as the "least desirable assignment at the plant,"*fn5 on a rotational basis. After its waiver issue was defeated, the Company arbitrarily selected the employees for the job. It assigned Coon to the Wrigley work on April 3, 1978 and April 4, 1978. On April 5, 1978, Coon called in sick. He was discharged that same day for excessive absenteeism.
The evidence shows that Coon did not have a model attendance record. At one time, he had been absent 18% of his working days; at another, he was sent a warning that his absence five Fridays out of seven was unsatisfactory. The ALJ in his opinion carefully details Coon's attendance record.*fn6 We agree with his conclusion that "(the fact that Coon) was absent a considerable number of times is amply supported by the record." ALJ's Decision at 7, reprinted in Appendix at 224. We also agree, however, and will discuss below, that merely "because justifiable grounds for discharge existed, it does not necessarily follow (that) such was the motivating reason (for the dismissal)." Id.
The Union filed a grievance with General Warehouse on behalf of Coon, alleging that his discharge had been in retaliation for his union activities and did not constitute "just cause" under the collective bargaining agreement. In accordance with the collective bargaining agreement, the parties submitted their dispute to arbitration. The arbitrator heard argument on the possible motives for Coon's discharge, but made no finding on whether the discharge was based, even in part, on General Warehouse's hostility toward Coon's union activities. Rather, the arbitrator focused only on Coon's behavior and found that his excessive absenteeism was "just cause" under the collective bargaining agreement for his dismissal.*fn7
After the arbitrator's decision, Coon filed a complaint with the Board alleging that respondent interfered with the exercise of his section 7 rights*fn8 (a section 8(a)(1) violation) and discriminated against him in his tenure and condition of employment (a section 8(a)(3) violation). A hearing was held before an Administrative Law Judge (hereinafter "ALJ") on February 21, 1979. The ALJ, declining to defer to the arbitrator's decision, concluded that Respondent had engaged in the alleged unfair labor practices. Accordingly, he recommended that General Warehouse be ordered to cease and desist from its discriminatory acts and reinstate Coon with backpay. The Board summarily adopted the ALJ's order.
Our decision on whether to enforce the Board's order turns on two important issues. First, we must decide whether the Board properly refused to defer to the arbitrator's decision in this case. Second, if we hold that the Board did not abuse its discretion in refusing to defer, NLRB v. Pincus Bros., Inc. Maxwell, 620 F.2d 367, 372 (3d Cir. 1980),*fn9 we must determine whether there is substantial evidence on the record to support the Board's finding that respondent violated sections 8(a)(1) and (3) of the Act. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 491, 492-96, 71 S. Ct. 456, 464, 466, 467-68, 95 L. Ed. 456 (1951).
In Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955), the Board set forth its standards for deferring to arbitrators' awards.*fn10 It stated that it would defer to an arbitrator's award if: (1) the proceedings have been fair and regular; (2) the parties agreed to be bound; and (3) the decision was not "clearly repugnant" to the purposes and policies of the Act.*fn11 Spielberg, 112 N.L.R.B. at 1082. The parties have stipulated to the first two of these requirements. The Board refused to defer because it found that the third requirement had not been met. Although we agree with the Board's conclusion that it was not required to defer in this case, we choose to base our decision on a fourth requirement a prerequisite to the Spielberg standards articulated by the Board in Raytheon Co., 140 N.L.R.B. 883 (1963), enforcement denied on other grounds, 326 F.2d 471 (1st Cir. 1964).
In Raytheon Co., the Board held that it would not defer to an arbitrator's decision if the arbitrator failed to consider and rule on the unfair labor practice issue.*fn12 See also Max Factor & Co., 239 N.L.R.B. 804 n.3 (1978) (noting that both the Board and the courts have taken the position that the Board should not defer ...