Andersen Sand And Gravel Co.

National Labor Relations Board - Board Decisions

Dec 23, 1985

277 N.L.R.B. 1204 (N.L.R.B. 1985)

1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Andersen Prestress Division Andersen Sand and
Gravel Company and Jeff Tolfree . Case 7-CA-
17391
23 December 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 14 September 1982 Administrative Law
Judge Elbert D. Gadsden issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief. On 23 February 1984 the Board
issued an order remanding the proceeding to the
judge for consideration and preparation of a sup-
plemental decision in light of its decision in Olin
Corp., 268 NLRB 573 (1984). On 5 November 1984
Administrative Law Judge Elbert D. Gadsden
issued the attached supplemental decision. Thereaf-
ter, the Respondent filed exceptions and a support-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision, the sup-
plemental decision, and the record in light of all
the exceptions and briefs and has decided to affirm
the judge's rulings, findings,, and conclusions only
to the extent consistent with this Supplemental De-
cision and Order.
The judge found that the instant case is not sub-
ject to deferral to the arbitration award under Olin
Corp., supra, because the arbitrator was not pre-
5ented with the facts or law relevant to resolving
the unfair labor practice, issue. The judge further
found that the arbitration award is clearly repug-
nant to the purposes and policies of the Act.
The Respondent excepts to the judge's failure to
defer to the arbitration award which upheld the
`discharge of _ employees Jeff Tolfree and Jerry
'Vickers for engaging in unauthorized walkouts. In
support of its exceptions the Respondent submits
that the judge's- failure to defer to the arbitration
award was an error of law and that the General
Counsel did not meet her burden of, proof that de-
ferral is not warranted in this case. For the reasons
set forth below, we find merit in the Respondent's
contentions.
In Olin Corp. the Board reaffirmed its commit-
ment to the standards set forth in Spielberg Mfg.
Co., 112 NLRB 1080 (1955), wherein it was held
that the Board would defer to an arbitration award
where the proceedings appear to have been fair
and regular, all parties have agreed to be bound,
and the decision of the arbitrator is not clearly re-
pugnant to the purposes and policies of the Act. In
addition, the Board clarified its position with re-
spect to the Raytheon Co.' requirement that the ar-
bitrator must- have considered the unfair labor
practice issue. Under the revised standard, an arbi-
trator has adequately considered the unfair labor
practice issue 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.
Moreover, where a respondent shows that an arbi-
tration concerning the matter before the Board has
already occurred, the burden is now on the Gener-
al Counsel to demonstrate that there are deficien-
cies in the arbitral process requiring the Board to
ignore the determination of the arbitrator and sub-
ject the case to de novo review.
The judge found that deferral is inappropriate
because 'the arbitration panel2 was not presented
with the facts relevant to resolving the unfair labor
practice issue, the arbitration decision does not in-
dicate whether, the panel considered or resolved
the unfair, labor practice issue, and the decision is
clearly repugnant to the Act. In support of this po-
sition the judge relied on the absence of any ration-
ale in the arbitration award to indicate that the
panel considered the unfair labor practice and the
failure of the parties, to raise the issue at the hear-
ings.
We find, contrary to the judge, that the arbitra-
tion award satisfies the requirements of Olin and
that the General Counsel failed to satisfy her
burden of proof. First, it is clear that contractual
and statutory' issues are factually parallel. Indeed,
as admitted by the General Counsel, the question
of whether an employee may be discharged for
violating a no-strike clause is one which must be
decided on a determination of the meaning and in-
terpretation 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 unequivo-
cally waived under the no-strike provision of the
contract, is a question of contract interpretation.
Because the contractual and statutory issues are co-
extensive, the Board expressly recognized in Na-
tional Tea Co., 198 NLRB 614 (1972), that cases
concerning interpretation of 24-hour clauses were
"particularly appropriate for deferral to arbitration
proceedings and for application of Spielberg princi-
ples."
1 140 NLRB 883 (1963).
2 The grievance filed by Tolfree and Vickers was heard by the West-
ern Michigan Industrial Board, an arbitration panel composed of an equal
number of employer and union representatives
277 NLRB No. 127
ANDERSEN SAND & GRAVEL, CO. 1205
Second, it is equally apparent that the arbitration
panel was presented generally with the facts rele-
vant to resolving the unfair labor practice.3 In this
respect, the General Counsel has not shown that
the panel was lacking any evidence relevant to the
determination of the nature of the obligations im-
posed by the no-strike clause in the collective-bar-
gaining agreement and to the determination of the
nexus between that clause and Vickers' and Tol-
free's conduct. 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 that the
judge misinterprets the requirements of Olin. Under
Olin the arbitrator need only be "generally present-
ed" with the facts relevant to resolving the statuto-
ry issue. In the instant case, it is undisputed that
Vickers and Tolfree were discharged for engaging
in a walkout. The arbitration award denied the
grievance and specifically upheld the discharge
pursuant to the provisions in the collective-bargain-
ing agreement relating to unauthorized walkouts.
In the absence of any evidence to the contrary, it is
reasonable to conclude that resolution by the panel
of the contractual issue required the same evidence
relevant to resolving the unfair labor practice issue.
Therefore, because the evidence before the arbitra-
tion panel was essentially the same evidence neces-
sary for a determination of the merits of the unfair
labor practice charge, we are satisfied that this re-
quirement has been met.'
Finally, the General Counsel argues that the ar-
bitration award is clearly repugnant to the purposes
and policies of the Act. Both the General Counsel
and the judge have mistaken the Board's role in
this matter. Because the General Counsel and the
judge would have decided the contractual issues in
this case differently than the arbitration panel, they
argue that deferral is inappropriate, As we have re-
peatedly stated since our decision in Olin, the
3 No party contends that the parties had not agreed to be bound by
arbitration or that the proceedings were not fair and regular.
4 In Member Dennis' view, this case also raises an issue under Sec. 502
of the Act because the judge found that Vickers and Tolfree walked out
to protest unsafe working conditions and therefore their conduct was not
rendered unprotected by the contractual no-strike clause, Nevertheless,
Member Dennis finds that the Olin deferral standards are satisfied here
with respect to the Sec. 502 issue.
A contract clause provides that employees will not, under any circum.
stances, be required or assigned to engage in any activity involving dan-
gerous working conditions At the arbitration hearing, the Union cited
this "dangerous work" clause and argued that the no-strike provisions
were inapplicable because the employees' walkout was over "outrageous
and death-inviting" working conditions. In determining that the employ-
ees' walkout breached the no-strike clause, the arbitration panel implicitly
rejected the Union's contention that the walkout was caused by abnor-
mally dangerous working conditions and therefore beyond the scope of
the no-strike clause. Accordingly, Member Dennis finds that the contrac-
tual issue and the Sec 502 issue are factually parallel and that the panel
was presented generally with the facts relevant to resolving the Sec 502
issue
Board's standard of review does not contemplate
that the Board will substitute its judgment for that
of the arbitrator in resolving contractual issues.5
Rather, we will inquire only into whether the arbi-
trator adequately considered the unfair labor prac-
tice issues , which, in this case, we have concluded
was satisfactorily done.6
Accordingly, we shall defer to the grievance ar-
bitration award and dismiss the complaint in its en-
tirety.7
ORDER
The complaint is dismissed.
S Martin Redi-Mix, Inc„ 274 NLRB 559 (1985), Altoona Hospital, 270
NLRB 1179 (1984); Badger Meter, Inc„ 272 NLRB 824 (1984).
B By adopting a broadly based deferral policy, as enunciated in Olin,
the Board endorses the national labor policy favoring arbitration and
achigves one of the primary objectives of the Act-to encourage collec-
tive bargaining Deferral recognizes that the parties have accepted the
possibility that an arbitrator might decide a particular set of facts differ-
ently than would the Board. This possibility, however, is one which the
parties have voluntarily assumed through collective bargaining
' In view of our decision to defer to the arbitration award, we find it
unnecessary to rule on the merits of the unfair labor practice allegations.
Joseph A. Barker, Esq., for the General Counsel.
Leopold P. Borrello, Esq., of Saginaw , Michigan , for the
Respondent.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge.
Upon unfair labor practice charges filled on February 8,
1980, by Jeff Tolfree and Jerry Vickers, individuals (the
Charging Parties), and a charge filed in Case 7-CA-
19339 on May 22, 1981, by Teamsters Local Union No.
486 (the Union), a complaint was issued by the Regional
Director for Region 7, on behalf of the General Counsel,
on June 1, 1981, which was consolidated pursuant to
Section 102.33 of the Board Rules and Regulations with
the charge subsequently filed in Case 7-CA-19339 on
July 10, 1981.
In its answer filed on July 27, 1981, the Respondent
denies that it has engaged in any unfair labor practices as
alleged in the consolidated complaint.
The hearing in the above matter was held before me in
Burton, Michigan, on June 17, 1982. Briefs have been re-
ceived from the General Counsel and counsel for the Re-
spondent, respectively, which have been carefully con-
sidered.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT'
1. JURISDICTION
Andersen Prestress Division, Andersen Sand and
Gravel Company (the Respondent) is, and has been at all
times material herein, until in or about July 1980, main-
tained redi-mix and prestress divisions located at 6010
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Melbourne Road, in the city of Milwaukee, Michigan,
where it was engaged in the manufacture, nonretail sale,
and distribution of concrete beams, columns, hollow core
floors, and redi-mix concrete.
Although Respondent Sand and Gravel Company
ceased operations at its Milwaukee, Michigan location
about July 1980, it has nevertheless continued to be en-
gaged in the retail and nonretail sale of building supplies
at its Saginaw, Michigan location.
During the year December 31, 1980, a representative
period, the Respondent, in the course and conduct of its
business operations, purchased and caused to be trans-
ported and delivered to its Michigan facilities goods and
materials valued in excess of $50,000 which were trans-
ported and delivered to its facilities in Michigan directly
from points located outside the State of Michigan. The
Respondent also manufactured, sold, and distributed
from its Michigan facility products valued in excess of
$50,000, which were shipped from its facility directly to
points located outside the State of Michigan.
The complaint alleges, the Respondent admits, and I
find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
find that Local 486, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (the Union) is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
On the joint motion of Respondent and Local 486 that
Case 7-CA-19339 be severed from Case 7-CA-17391,
pending receipt by the administrative law judge within
60 to 90 days from the date of June 17 , 1982, withdrawal
and notification from the parties that there has been
compliance with the terms of the non -Board settlement
entered into by the parties of this date, Case 7-CA-
19339 was accordingly severed from Case 7-CA-17391.
The complaint alleges and the answer admits that at all
times material herein the following named persons occu-
pied the positions set opposite their respective names,
and have been and are now supervisors of the Respond-
ent, within the meaning of Section 2(11) of the Act, and
agents within the meaning of Section 2(13) of the Act:
Frank N. Andersen , president ; and Richard Todd, Pres-
tress division manager.
At all times material herein the Respondent and the
Union were parties to a collective -bargaining agreement
covering the employees herein involved.I
B. The Concerted Activities of Respondent's Employees
and Respondents Response Thereto
A composite of the undisputed,' essentially corrobo-
rated, and credited testimony established that welder
Jerry Vickers and cage tier Jeff Tolfree entered the
employ of Respondent in October 1979. On December 3,
1979, Foreman Basil Wilson directed welder Vickers to
perform an are welding job outside in an area where
there were puddles of water and while it was raining
rather intensely. The welding equipment did not have
leads long enough for him to perform the job in the little
cabin that was constructed there, and he would have had
to bring the welder right out in the rain with the nonin-
sulated ground and lead wires. Vickers refused to per-
form the assignment because he was aware of an employ-
ee who had been electrocuted or experienced an electric
shock a few weeks earlier (November 15 or 16, 1979),
and he was not going to be the next in line. Wilson said,
"[W]ell, if you don't weld, you will probably get, fired."
However, Vickers was assigned to another job for the
day.
On Friday, December ' 7, it was raining intensely,
mixed with snow. Supervisor Wilson again ordered
Vickers to weld in the rain. Vickers advised Wilson that
he was not going to weld because it was not safe. Wilson
said, "I want you outside working or else." He asked
Wilson, "Else what?" and Wilson said, "I will show
you," and turned around and grabbed his timecard and
punched him out. At that time Tolfree and Matthews
joined him and they discussed picketing the Respondent.
Thereafter, Manager Todd came out and told him it
was safe for him to weld in the rain, and he asked Todd
how many years he had been welding. Todd shrugged
his shoulders and walked--away. Vickers was then trans-
ferred-to a tying _job in the yard with about 15 or 20
other employees, including Tolfree and Paul Mathews.
They were wearing raincoats and rain trousers but they
were not wearing company-furnished headgear. While
Vickers worked in the yard, he learned that an inspector
from MIOSHA (Michigan Occupational Safety and
Health Administration) was on the premises. The inspec-
tor was with or near Steward Morgan and President An-
dersen. Vickers and Tolfree approached the inspector
and tried to point out different unsafe conditions about
the forklifts not having breaks, -the big crack in the wall
where they worked, and such things as Vickers' work-
site. The inspector told them he was there for one reason
and one reason only, and turned around and walked
away. They followed the inspector inside and tried to
point out the water on the floor and the cracks in the
roof when Andersen pointed at Tolfree and Vickers and
said, "I don't want you to pay any attention to them "
Thereafter, the inspector did not pay any attention to
them and Vickers, Tolfree, and Mathews went out to the
truck and mounted picket signs on the truck which was
right beside the entrance gate.
1 The facts set forth above are undisputed and are not in conflict in the
record '
2 Neither fellow employee Paul Mathews, Manager Richard Todd, nor
Supervisor Basil Wilson appeared and testified herein, and no explanation
was given for their nonappearance
ANDERSEN SAND & GRAVEL CO.
With respect to the employee who had been victim-
ized by an electrical accident, Vickers testified without
dispute that he had learned from a foreman Rudy, whose
last name he could not recall, that the victim was a guy
who had helped Vickers weld on several occasions, and
that it happened while the victim was helping another
welder, Bradley, with an aluminum ruler while working
in water, and the arc must have struck the ruler. That
employee had not returned to work as of December 13.
Prior to December 7, 1979, company policy had been
to either permit employees to work inside or to go home
under such weather conditions; and either Manager
Todd or Yard Supervisor Wilson would give such a di-
rective. However, on this occasion (December 7), Tot-
free, Vickers, and Paul Mathews asked Manager Todd
about headgear since they were working in the rain.
Todd told them that such gear was on order. They then
asked him could they work inside and he told them the
shop was too full with other workers Thereupon, Tol-
free, Vickers, and Mathews informed Manager Todd
they were going home and he told them if they touched
their timecards, they would be fired. Tolfree told Man-
ager 'Todd on behalf of himself, Vickers, and Mathews
that he would have to fire them. Tolfree then punched
out his timecard and thereafter met Vickers and Math-
ews who accompanied him to Union Steward Morgan
out in the yard They informed Morgan what had hap-
pened and asked him were they required to work in the
rain without proper rain gear Morgan told them he did
not know but he would call Union Representative Ha-
valda and let them know later He advised Tolfree to
punch back in until he had contacted the Union. Morgan
returned 15 minutes later and told them they did not
have to work in the rain without proper rain gear. Vick-
ers and Mathews asked Morgan about putting up picket
signs and the latter informed them that he could not
advise them to do so, but if they did he would honor
their signs.
Tolfree went to punch out his timecard but discovered
it was not in the rack Meanwhile, because it was
payday, Vickers and Mathews went to pick up their pay-
checks but they did not punch out Because Tolfree had
been punched out, he headed toward the gate and met
Supervisor Wilson, who told him not to go out the gate
with Vickers and Mathews because they were crazy
Tolfree told Supervisor Wilson he was not joining in the
strike because he was cold and was going home. Vickers
and Mathews were outside the gate with picket signs by
Vickers' truck. Tolfree nevertheless went outside and sat
in the truck with Vickers and Mathews. Although there
was some minimal dispute about the specific contents of
the picket signs, both Tolfree and Vickers testified that
the signs bore the language, "Picket-Unsafe Working
Conditions-Unfair." Respondent did not categorically
dispute this, but if it did, I was persuaded by Tolfree and
Vickers' version and therefore credit their account.
As Tolfree, Vickers, and Mathews sat outside in the
truck before the noon lunch hour, they talked about the
unstable walls between which they had to work, their
trucks having no brakes, electrical welding equipment
without insulated rubber on the leads, the electrical prob-
lems in the plant, as well as cranes without brakes or a
1207
warning system. They also talked about safety helmets
for their heads during rainy and fair weather, as well as
safety glasses to protect their eyes from flying concrete.
After Tolfree, Vickers, and Mathews had been outside
with their picket signs about an hour, or an hour and a
half, the employees, came out for the noon lunch period,
and as they came out the gate to go to their cars to eat
lunch, they observed the picket signs and honored them
by not returning to work.
At approximately 1:30 p.m on December 7, Union
Business Agent Havalda came to the plant in response to
a call from Respondent He asked Tolfree and Vickers
what was the problem and they told him about the
unsafe working conditions which led them to picket.
Thereupon Vickers, Tolfree, and Mathews accompanied
Agent Havalda to a meeting with Plant President Ander-
sen, Manager Todd, and Supervisor Wilson. Halvada
told Andersen the Company had to provide proper rain
gear and Andersen said hardhats were on order and
would be furnished to the employees. After further dis-
cussion, the Company agreed Vickers did not have to
work in the rain or water but could work inside or go
home At the close of the meeting it was agreed other
safety conditions discussed in the meeting would be re-
solved. Andersen told Vickers and Tolfree to go home
and return to work on the next working day, Monday.
The plant was virtually closed. There had been no dis-
cussion of disciplinary action for the picketing activity.
Halvada, Vickers, and Tolfree testified that they left the
meeting with the understanding that the entire problem
had been resolved. Vickers and Tolfree returned to work
on Monday, December 10, and worked without incident
until December 12.
On December 12, 3:30 p.m., Manager Dick Todd
brought a letter (G.C. Exh. 3) to Tolfree and Vickers,
the substance both which read as follows:
On December 7th, 1979 you stood in front of our
entrance gate with signs, at your Milwaukee Plant
and prevented trucks and others from entering our
plant. The signs originally read "on strike," then
were changed to read "unsafe working conditions "
You have violated the following of the Union
contract between Andersen and Teamsters Union
#486 and caused the Andersen PreStress -consider-
able loss and damage by work stoppage in the plant.
You have violated the following provisions of the
contract:
(1) Article 8, Section 3, page 6. It is further
agreed that all cases of any unauthorized strike,
slow-down, walk-out or any authorized cessation
of work that the Union shall not be liable for
damage resulting from such unauthorized acts of
its members. While the Union shall undertake
every reasonable means to induce such employees
to return to their jobs during any such period of
authorized stoppage of work mentioned above, it
is specifically understood and agreed that the
Company during the first twenty four (24) hours of
such unauthorized work stoppage shall have the sole
and complete right of reasonable discipline short of
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge . Such Union member shall not be enti-
tled to or have any recourses to any other provi-
sions of this agreement.
(2) Article 11, Section 2, page 8-Section 2.
Any individual employee or group of employees,
who willfully violate or disregard the arbitration and
grievance procedure set forth in Article 8 of this
Agreement, may be summarily discharged by the
Employer without liability on the part of the Em-
ployer or the Union.
The letter continued , "[y]ou are therefore suspended
without pay during the period from December 17, 1979,
to January 2, 1980 . It was signed by Richard W. Todd,
division manager.
Tolfree and Vickers then asked Manager Todd why
Mathews had not received a suspension letter. Todd re-
plied that the Company was trying to recover lost
money due to the protest, which would have been their
holiday pay. Tolfree told Todd the Company would not
get away with it, and Todd said it did . Thereupon, Tol-
free and Vickers showed the suspension letters to Stew-
ard Morgan , who said if he were in their shoes, he
would put up picket signs again for unfair labor prac-
tices. Later that day (December 12) Morgan told them to
file a grievance.
The record shows that a letter dated December 12,
1979, from counsel for Respondent advised Union Repre-
sentative Havalda as follows:
The two men who started the wildcat picketing
were Mr. Jerry Vickers and Mr. Jeff Tolfree. They
actively picketed the plant gate and encouraged
other members of Local 486 to leave work , causing
a virtual total cessation of work. The company is
appreciative to the employees who continued to try
to work and who complied with the contract.
It is clear that both Mr. Vickers and Mr. Tolfree
violated the following provisions of the contract.
Rule 7, page 3, "flagrant disobeying of orders of
supervisors " when they wrongfully refused to work
after being ordered to work.
Article 11, Section 2 , page 8, "willful disregard of
the arbitration and grievance procedure."
Article 8, Section 3, page 7, "causing unauthor-
ized work stoppage ." You will note that violation
of Rule 7 and Article 11, Section 2 can result in a
discharge of the employees.
On December 13, 1979, Vickers and Tolfree met at the
plant about 6 a.m. during which time they reviewed por-
tions of the contract cited in their letter of suspension
from the Respondent . Their purpose of meeting was to
again picket the plant at the entrance gates. Their signs
stated , "unfair labor practices ." When the employees re-
ported to work between 7:30 and 8 a.m., they observed
the picket signs of Vickers and Tolfree who were later
joined by Mathews . Just about all the 90 employees em-
ployed by the Respondent honored the picket signs and
refused to enter the gate, with the exception of about 10
employees . Union Steward Morgan followed the 10 em-
ployees into the gate and advised them they could not
cross the picket line and they turned around and came
back through the gate.
About 10:30 a.m., Union Representative Havalda,
along with attorney for Respondent Borrello, arrived at
the plant and Vickers and Tolfree accompanied them to
the office of Plant President Andersen. Present with An-
dersen were Manager Dick Todd and Union Steward
Morgan . The discussion involved the unauthorized cessa-
tion of work operations , the safety issues involving Vick-
ers being ordered to work in the rain or inside in the
water, and the fact that the employees were not fur-
nished headgear . Manager Todd brought in seven of
eight headgear which were in need of some repair and
cleaning. At the opening of the meeting , Attorney Bor-
rello pointed at Vickers and Tolfree and said , "You two
are fired," and their suspension and discharge were a
subject of discussion . The Respondent read the clause of
the contract provisions dealing with the unauthorized
strikes and the refusal to comply with orders of a fore-
man. After the meeting , Vickers and Tolfree went to the
union hall with Representative Havalda and filed a griev-
ance with respect to their discharge.
Union Representative Carl Havalda testified that either
or both Vickers and Tolfree filed a grievance with his
office on December 12, 1979, protesting the suspension
they received on that date . He further testified that Tol-
free and Vickers jointly filed a grievance on December
13, 1979, with respect to their discharges , during which
time both grievance , suspension , and discharges were
consolidated in one grievance dated December 13, 1979
(G.C. Exh. 31).
The grievance filed by Tolfree and Vickers on Decem-
ber 12 and 13 was heard by the Western Michigan Indus-
trial Board on December 18, 1979. The hearing lasted
about 15 to 20 minutes , and Vickers and Tolfree were
asked if they had anything they wanted to say. The hear-
ing was not recorded and transcribed and no findings of
fact or written disposition were established to have been
made. The Industrial Board ruled against Vickers and
Tolfree and the Union requested a rehearing which was
heard on March 24, 1980, based on the safety report
from MIOSHA submitted to the Industrial Board. The
Board's disposition is reflected in Respondent 's Exhibit 2
as follows:
79-109(a), (b)-Local 486 v. ANDERSEN
PRE-STRESS , Re: Jerry Vickers
Re: Jeffrey Tolfree
Dispute: Discharge
Decision : Upon the facts presented and by majority
vote of the Board; it appearing that these matters
involve the same issues of fact and contractual lan-
guage; and by agreement of all parties , they were
heard on a joint record . Upon the facts presented
and by majority vote of the Board; the discharge is
upheld, the grievance denied pursuant to the provi-
sions in the contract relating to unauthorized walk-
outs.
The Union (Havalda) did not authorize the picketing
or striking on December 7 or 13 nor did Vickers or Tol-
ANDERSEN SAND & GRAVEL CO. 1209
free inform the Union that they were going to picket on
December 7 or 13.
Union Representative Havalda undisputedly testified
that there had been several work stoppages at the Re-
spondent's plant over the years since 1972, but the work-
ers always went back to work within 24 hours. There-
fore, no employees had ever been disciplined or dis-
charged for striking or causing a work stoppage He fur-
ther testified that the Industrial Board (see R. Exhs 2
and 3) did not issue any oral decisions and no transcrip-
tion was made of the December 18 or the March 25,
1980 hearing. He stated that in his understanding of the
contract the discharges were unwarranted because the
employees returned to work in less than 24 hours.
Although Havalda appeared and spoke on behalf of
Tolfree and Vickers at the December 18 hearing, counsel
for the Respondent, Borrello, did not appear at that
hearing. Borrello testified that the suspensions of Decem-
ber 11 were issued to Vickers and Tolfree for instigating
the picketing activity on December 7. He testified that
there was no rain or snow on December 13 nor inclem-
ent weather.
Borrello and President Andersen attended the request
for rehearing held on March 25. Although the Industrial
Board does not allow attorneys to make presentations, it
made an exception in his case because Andersen was suf-
fering from laryngitis. Borrello testified that he did
advise the Company to cite the above-cited sections in
support of the Respondent's suspensions, but did not
advise the Respondent with respect to the discharges of
Vickers or Mathews.
Borrello further testified that the worker allegedly
electrocuted was merely shocked and that a workman's
compensation investigative report established that the
workman was not standing in water, although the floors
were wet.3
Analysis and Conclusions
In analyzing and evaluating the evidence of record, it
is particularly observed that the only witnesses to testify
on a limited basis on behalf of Respondent herein, were
its president, Frank N. Andersen, and counsel for Re-
spondent, Leopold P. Borrello Neither Foreman Basil
Wilson nor Division Manager Richard Todd appeared or
testified herein, and no explanation was offered for their
nonappearance. Consequently, most of the testimony of
record is essentially uncontroverted.
It is well established by the evidence that on both
dates, December 3 and 7, 1979, welder Jerry Vickers re-
fused to perform a welding assignment in the rain and/or
in puddles of water, which provided the probable cir-
cumstances for his electrocution, as a fellow employees
had been victimized only a few weeks earlier; and that
S Although Respondent promised to permit the counsel for the Gener-
al Counsel to inspect such workman's compensation investigative report
of the incident in which a worker was a victim of an electrical accident
and submit such report as an exhibit herein, as of the date of this decision
I have not received such report Under these circumstances, Borrello's
testimony about the existence and contents of such a document is self-
serving and unsupported Consequently, I discredit his testimony and it is
not considered in disposing of the issues herein Otis Elevator Co., 255
NLRB 235 (1981).
Vickers, along with cage tier Jeff Tolfree and Paul
Mathews, all refused to work in the rain without proper
headgear on December 7. I therefore conclude and find
that employees Vickers, Tolfree, and Mathews were en-
gaged in protected concerted activity for their mutual
aid and protection on December 7. NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962), and Brown & Root,
Inc., 246 NLRB 33 (1979), enfd. 634 F 2d 816 (5th Cir.
1981). Morrison-Knudsen Co., 173 N]LRB 56 and cases
cited at 59 fn. 11 (1968), enfd. 418 F.2d 203 (9th Cir.
1969).
In view of the risk of danger of electrocution, Vickers
was ordered to resume work in the rain without proper
rain (head) gear. Concerning the safety of other working
conditions of which they complained to management on
December 7, I find that the length of time generally nec-
essary to process a grievance under the current griev-
ance procedure justified the immediate protest picketing
action taken by Vickers, Tolfree, and Mathews. Redwing
Carriers, 130 NLRB 1208 (1961), enfd. 325 F.2d -1011
(D.C. Cir. 1963), and Gateway Coal v. United Mine Work-
ers, 414 U.S. 368 (1974). Moreover, whether or not the
Charging Party's complaints about safety ultimately
proved valid is of no consequence since, as I find, their
complaints were not frivolous. Interboro Contractors, 157
NLRB 1295 (1966).
Since Supervisor Basil Wilson pulled the timecards of
Vickers and Tolfree on December 7 because Vickers re-
fused to weld in the rain, and employees Vickers, Tol-
free, and Mathews refused to work in the rain without
proper rain gear, the employees had a reasonable basis
for believing they were discharged by Respondent. This
is especially true since Supervisor Wilson had fore-
warned them they would probably be discharged if they
did not work in the rain. Ridgeway Trucking Co., 243
NLRB 1048 (1979), enfd. 622 F.2d 1222 (5th Cir. 1980).
Nevertheless, when Vickers, Tolfree, and Mathews pick-
eted the plant on December 7 and their fellow employ-
ees refused to return to work after the lunch period, Re-
spondent agreed with the union agent (Havalda) that
Vickers did not have to weld in the rain or puddles of
water; that neither Vickers, Tolfree, nor Mathews had to
work in the rain or unsafe places; and that Respondent
would furnish employees with proper weather gear
(hardhats) and safety equipment. Vickers, Tolfree, and
Mathews returned to work on the next working day,
Monday, December 10, as directed by Respondent. They
also worked Tuesday, December 11, and Wednesday,
December 12.
However, on Wednesday, December 12, Vickers and
Tolfree each received a letter from the Respondent sus-
pending them from work from December 17, 1979, until
January 2, 1980, for their picketing activity on December
7, 1979. After talking with Union Steward Morgan,
Vickers and Tolfree proceeded to protest their suspen-
sions and the continued unsafe working conditions by
picketing the plant on the next morning, December 13.
They were joined a little later in the day by Matthews.
When the other employees refused to cross the picket
line and enter the plant for work, Respondent met with
Vickers, Tolfree, and the Union's business agent Havalda
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at 10.30 a m. At the beginning of the meeting, Vickers
and Tolfree were informed by Respondent that they
were discharged for resuming the picketing. Further dis-
cussion about their suspensions, discharge, and the safety
matters about which they complained did not result in a
rescission of Respondent's disciplinary suspensions. The
Respondent defends its disciplinary suspension and dis-
charge of the Charging Parties pursuant to provisions of
the contract, which provided, in part, as follows:
Rule 7, page 3, "flagrant disobeying of orders of
supervisors" when they wrongfully refused to work
after being ordered to work.
Article II, Section 2, page 8, "willful disregard of
the arbitration and grievance procedure "
Article VIII, Section 3, page 7, "causing unau-
thorized work stoppage."
The suspension notices also indicated that a violation
of rule 7, article II, section 2, could result in the dis-
charge of the employee. However, their notice went on
to further advise that violations of article VIII, section 3,
gives the employer the "sole and complete right of rea-
sonable discipline short of discharge."
A reading of a more complete portion of the above-
cited provision provides as follows:
[I]t is specifically understood and agreed that the
company during the first twenty-four (24) hours of
such unauthorized work stoppage shall have the sole
and complete right of reasonable discipline short of dis-
charge.
The contract does not explain what is meant by "first
twenty-four (24) hours of such unauthorized work stop-
page," that is, whether 24 hours means a 24-hour day or
3 times 8 hours which equals 24 working hours. In the
absence of such specificity, it would appear that the liter-
al interpretation of the above language means three 8-
hour working days, rather than a 24-hour day. More-
over, since the language of the entire paragraph under
article VIII, section 3, makes it clear that the object of
this time provision is to enable the Union to try to per-
suade the striking or picketing employees to return to
work within the 24-hour period, it is only reasonable to
conclude that the Union would, in all probability, need
more than a 24-hour day within which to accomplish
that objective Consequently, the only logical meaning to
be attributed to such language is three 8-hour working
days. In this regard, the record shows that the picketing
activities of the Charging Parties on December 7, with-
out authorization, caused a cessation of work at the plant
from the noon lunch hour until the remainder of the
workday, which totaled about 4 hours
Vickers and Tolfree worked on Monday, December
10, Tuesday, December 11, and Wednesday, December
12. In protest of their suspension, they commenced pick-
eting the plant on December 13 at the starting worktime
(8 a.m.) causing an unauthorized cessation of work from
that time until 2-1/2 to 3 hours later, when they were
discharged by the Respondent between 10:30 and 11 a.m.
There was possibly no work in the plant for the remain-
der of the workday In such case, there was a cessation
of work for a period of the full 8 hours
Additionally, based on a reading of the language of the
sections of the Master Agreement between the Respond-
ent and the Union, cited by the Respondent in support of
its suspension and discharge of the Charging Parties, I
conclude and find that the language of the provisions is
sufficiently clear that the 24-hour clause of the contract
did not constitute a waiver of the employees' right to
strike. Food Fast Stores, 202 NLRB 247, 353 (1973), ap-
propriately cited by the General Counsel. It is also clear
that there was no unequivocal intent to waive the right
to strike, since the language lacks sufficient specificity
and there is an absence of any extrinsic evidence demon-
strating a more restricted interpretation. Operating Engi-
neers Local Union 18, 238 NLRB 652 (1978); Gray Hobart
Corp., 210 NLRB 742, 744 (1974), enfd. 511 F.2d 284,
288 (7th Cir. 1975), cert. denied 423 U.S. 925 (1975).
An Employer's power to discipline its employees
under the collective-bargaining agreement is, in any
event, subordinate to its employees' statutory rights pro-
tected under Section 7 of the Act which the employees
here did not waive. In fact it was doubtful under the cir-
cumstances (picketing against being ordered to work in
the rain without proper rain gear and under the hazard-
ous condition of a possible electrocution) that the em-
ployees or the union could have waived Section 502 of
the Act. See NLRB v. Magnavox Co. of Tennessee, 415
U.S. 322 (1974), rehearing denied 416 U.S. 952 (1974).
Although absent the well-established reasons for which
the Charging Parties were picketing Respondent's plant
on December 7, Respondent would have had a right
under the Master Agreement to suspend them for bring-
ing about an unauthorized cessation or work, short of 24
hours' duration. However, since the Charging Parties
(Vickers and Tolfree) were engaged in a picketing pro-
test of unsafe working conditions (working in the rain
without proper headgear and under circumstances sub-
ject to being electrocuted), they were engaged in con-
certed activities protected under the Act
Additionally, in Washington Aluminum Co., supra, em-
ployees walked out of a workshop, in contravention of a
rule requiring them to obtain permission to leave, be-
cause they considered the shop too cold for work. In
holding the employer's discharge of the employees un-
lawful, Justice Black stated for the Court: "Indeed, con-
certed activities by employees for the purpose of trying
to protect themselves from working conditions as un-
comfortable as the testimony and the Board findings
showed them to be in this case, are unquestionably ac-
tivities to correct conditions which modern labor man-
agement legislation treats as too bad to have to be toler-
ated in a humane and civilized society like ours."
Even economic detriment to the employer does not
justify its failure to comply with requirements of the
Act. Washington Aluminum Co, supra. Consequently, I
conclude and find that Respondent's notices of suspen-
sions to the Charging Parties not only had a coercive
and restraining effect on the exercise of employees' Sec-
tion 7 rights, but were in fact discriminatory and in vio-
lation of Section 8(a)(1) and (3) of the Act.
ANDERSEN SAND & GRAVEL CO
With respect to Respondent's discharge of Vickers and
Tolfree on December 13 for i esuming their picketing ac-
tivities on that date. the evidence clearly established that
their picketing activities concluded when they attended a
10:30 a in. meeting with Respondent. Both Tolfree and
Vickers were discharged by Respondent during that
meeting. Consequently, their picketing activity caused an
unauthorized cessation of work for 2-1/2 hours (from
starting time, 8 to 10:30 a.m ), at the least, or for 8 hours,
from starting time until closing time if the other employ-
ees went home), at the most. In neither case did the pick-
eting activities cause an unauthorized cessation of work
for 24 hours' duration. This is so even if both periods of
cessation are added and considered together If such ces-
sation of work for 24 hours had in fact occurred, Re-
spondent might have had a right under the contract to
discharge them, provided they were not protesting their
safety complaints Since Respondent discharged the
Charging Parties for causing an unauthorized cessation
of work for less than the 24-hour duration, the purpose
for which the 24-hour period was provided (to allow the
Union sufficient opportunity to try to persuade the strik-
ing or picketing employees to return to work) was not
allowed to run its course by the precipitous discharge of
the Charging Parties short of the 24-hour duration Con-
sequently, Respondent's discharge of Jerry Vickers and
Jeff Tolfree was clearly in violation of the contract, and
was discriminatory and in violation of Section 8(a)(1)
and (3) of the Act. Wagoner Transportation Co., 177
NLRB 452 (1969), enfd 424 IF 2d 628 (6th Cir. 1970).
Respondent's contention that Charging Parties were
discharged for disobeying orders of a supervisor is not
supported by the evidence of record There is no evi-
dence that any orders were given to the Charging Par-
ties on December 7 or 13, or at any other time material
herein, which they refused to comply with, except their
refusal to work in the rain and/or puddles of water
while welding, and/or without proper rain gear. Howev-
er, as established and found, such refusal by the Charg-
ing Parties fell within the pale of protected activity
under the Act.
Counsel for Respondent further argues that the pro-
ceeding in the instant case should be deferred to the arbi-
tration decisions (December 18, 1979, and March 25,
1980) of the joint panel of the Western Michigan Indus-
trial Board. The General Counsel concedes, however,
and I agree, that the question of the discharges of the
(:barging Parties for violating a no-strike clause of the
contract was properly submitted to the Industrial Board
for an interpretation and determination of the meaning of
the language in the collective-bargaining agreement be-
tween the Union and the Respondent. Mastro Plastics
Corp. v. NLRB, 350 US 270, 283-284 (1956) There is
no question that the no-strike clause of a contract be-
tween the Union and the Respondent herein was submit-
ted to the Industrial Board for disposition The question
raised by this argument is whether the Industrial Board,
in its disposition of the issues of contract interpretation,
also made determinations which satisfied the require-
ments of Spielberg Mfg. Co., 112 NLRB 1080 (1955), and
Suburban Motor Freight, 247 NLRB 146 (1980), as fol-
lows:
1211
1. The proceedings be fair and regular.
2. All parties agree to be bound by the determinations.
3. The decision not be repugnant to the purpose and
policies of the Act, and as further extended by the Board
in Raytheon Co, 140 NLRB 883 (1963), and Monsanto
Chemical Co., 130 NLRB 1097 (1961).
4. The issues involved in the unfair labor practice case
before the Board must have been presented to and con-
sidered by the arbitrator.
In the instant proceeding, it was we J established by
the evidence that the hearing before the Industrial Board
was not recorded and transcribed and no findings of fact
or written disposition of the facts were made Perhaps
more importantly, the evidence does not show, but in
fact strongly infers, that the issues involved in the unfair
labor practice charges herein (whether Vickers and Tol-
free were involved in protected concerted activity on
December 7 and 13, 1979, and, if so, were their dis-
charges motivated by such activity) were not submitted
to nor considered by the Industrial Board on December
18, 1979, nor on March 25, 1980. Counsel for Respond-
ent who testified herein did not offer any evidence to the
contrary, notwithstanding.
In the absence of such evidence satisfying the enumer-
ated requirements of Spielberg, supra, and Suburban
Motor Freight, supra, I conclude and find on the forego-
ing credited evidence of record, that a decision on the
issues raised herein need not be deferred to arbitration
under the contract I further conclude and find that Re-
spondent's suspension of Jeff Tolfree and Jerry Vickers
on December 12, 1979, for engaging in protected con-
certed picketing against unsafe work conditions on De-
cember 7 and 13, and its discharge of them in violation
of the contract on December 13, were discriminatorily
motivated and in violation of Section 8(a)(1) and (3) of
the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in close connection with its oper-
ations as described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, we shall order that it cease
and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
It having been found that Respondent interfered with,
restrained, and coerced its employees in the exercise of
their Section 7 protected rights by discriminatorily sus-
pending them from its employment because they engaged
in protected concerted activities by refusing to work
under dangerous and unsafe working conditions, and be-
cause Respondent discharged them for doing so, in viola-
tion of explicit provisions of its contract with the Union,
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the recommended Order will provide that Respondent
cease and desist from engaging in such conduct, and that
it make the discharged employees whole for any loss of
earnings within the meaning of and in accord with the
Board's decision in F W. Woolworth Co., 90 NLRB 289
(1950), and Florida Steel Corp., 231' NLRB 651 (1977),5
except as specifically modified by the wording of such
recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any like or relat-
ed manner interfering with, restraining, or coercing em-
ployees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act NLRB v. Entwistle Mfg. Co., 120 F.2d
532, 536 (4th Cir. 1941)
On the basis of the above findings of fact, and on the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Andersen Pre-Stress Division, Andersen Sand and
Gravel Company, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 486, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is
and has been at all times material a labor organization
within the meaning of Section 2(5) of the Act.
3 By discriminatorily issuing a notice of suspension or
in fact suspending employees for engaging in protected
concerted picketing, Respondent violated Section 8(a)(1)
and (3) of the Act.
4. By discharging employees for engaging in protected
concerted activities in violation of its contract with the
Union, Respondent discriminated against its employees in
violation of Section 8(a)(1) and (3) of the Act.
[Recommended Order omitted from publication.]
5 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
Joseph A. Barker, Esq., for the General Counsel
Leopold P. Borrello, Esq., of Saginaw, Michigan, for the
Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. On
February 23, 1984, the Board remanded the September
14, 1983 decision to me for consideration and preparation
of a supplemental decision, in light of any impact the
Board's January 19, 1984 decision in Olin Corp., 268
NLRB 573 (1984), may have on my decision. Following
issuance and service of such supplemental decision on
the parties, the provisions of Section 102 46 of the
Board's Rules and Regulations shall be applicable
In preparation for complying with the Board's
Remand Order, I issued and had served on the parties a
Notice to Show Cause, if any, on or before July 23,
1984, why the record in the instant proceeding is suffi-
cient, or why the record should be reopened for the in-
troduction of additional evidence The notice further ad-
vised that if the record evidence is deemed sufficient by
either party or if either party failed to respond to the
show cause order, it would be deemed by me that such
party or parties considered the record sufficiently docu-
mented for the issuance of a supplemental decision by me
and, in either brief on or before August 13, 1984, with
respect to any impact the Olin decision may have on the
decision in the instant case Only the General Counsel
submitted a brief which has been carefully considered.
In further compliance with the Board 's Remand Order
herein, only the appropriateness for deferral to the arbi-
trator's award , measured against the standards set forth
in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin
Corp, supra, is now considered by me in the instant pro-
ceeding.
Facts in the Instant Proceeding
On December 7, 1979, Jeff Tolfree, Jerry Vickers, and
Paul Mathews were assigned to work in the rain without
proper rain and headgear. When they refused to perform
the assignment and announced they were going home be-
cause of lack of proper rain gear and fear of being elec-
trocuted, as a fellow employee had been a few weeks
earlier, Supervisor Basil Wilson told them they would be
fired if they touched their timecards and did not perform
the assignment. Tolfree responded, then "you'll have to
fire us." Vickers and Mathews went outside the gate and
displayed picket signs which read "Picket-Unsafe
Working Conditions." They were later joined by Tol-
free. When the working employees came out of the gate
for lunch, they observed the picket signs and would not
return to work. The Respondent called Union Represent-
ative Havalda who met with President Andersen and the
parties agreed the picketing employees did not have to
work in the rain. The Company also agreed to resolve
the subject of the safety complaints and the picketing
employees were told to report to work on the next day.
On Monday, December 10, Vickers and Tolfree re-
turned to work and worked December 11 and 12. How-
ever, about 3:30 p in. on December 12, Manager Todd
gave Tolfree and Vickers a letter, the substance of which
read as follows:
On December 7th, 1979 you stood in front of our
entrance gate with signs, at the Milwaukee Plant
and prevented trucks and others from entering our
plant. The signs originally read "on strike," then
were changed to read "unsafe working conditions "
You have violated the following of the Union
Contract between Andersen and Teamsters Union
#486 and caused Andersen Prestress considerable
loss and damage by work stoppage in the plant.
You have violated the following provisions of the
contract:
(1) Article VIII, Section 3, page 6. It is further
agreed that all cases of any unauthorized strike,
slow-down, walk-out or any unauthorized cessa-
tion of work that the Union shall not be liable for
damage resulting from such unauthorized acts of
its members. While the Union shall undertake
every reasonable means to induce such employees
to return to their jobs during any such period of
ANDERSEN SAND & GRAVEL CO. 1213
unauthorized stoppage of work mentioned above,
it is specifically understood and agreed that the
Company during the first twenty-four (24) hours of
such unauthorized work stoppage shall have the sole
and complete right of reasonable discipline short of
discharge. Such Union member shall not be enti.
tled to or have any recourse to any other provi•
sions of this agreement.
(2) Article II, Section 2, page 8. Any individ-
ual employee or group of employees, who willful-
ly violate or disregard the arbitration and grievance
procedure set forth in Article 8 of this Agreement,
may be summarily discharged by the Employer
without liability on the part of the Employer or
the Union.
The letter continued , "You are therefore suspended
without pay from December 17, 1979 to January 2,
1980." It was signed by Richard W. Todd, division man-
ager.
On that afternoon (December 12) Tolfree and Vickers
filed a grievance with the Union protesting their suspen-
sion.
In a letter dated December 12, 1979, Respondent's
legal counsel advised the Union that Tolfree and Vickers
initiated the wildcat picket which encouraged other
union employees to leave work, causing a virtual cessa-
tion of work. The letter further advised as follows:
It is clear that both Mr. Vickers and Mr. Tolfree
violated the following provisions of the contract.
Rule 7, page 3, "flagrant disobeying of orders of
supervisors" when they wrongfully refused to work
after being ordered to work.
Article II, Section 2, page 8, "willful disregard of
the arbitration and grievance procedure."
Article VIII, Section 3, page 7, "causing unau-
thorized work stoppage." You will note that viola-
tion of Rule 7 and Article II, Section 2 can result in
a discharge of the employee.
At 6 o'clock on the morning of December 13, Vickers
and Tolfree met at the plant's gate with signs labeled,
"Unfair Labor Practices" and proceeded to picket Re-
spondent. When the work force reported to work at 7:30
and 8 a.m. and observed the picket signs, they refused to
enter the plant. Mathews later joined Vickers and Tol-
free in their picketing activity. The picketing by Tolfree
and Vickers on December 7 was undertaken in protest of
their complaints about unsafe working conditions. Their
picketing on December 13 was undertaken in protest of
their complaints about unsafe working conditons and
their suspension for picketing on December 7. The De-
cember 7 picketing was found to have constituted pro-
tected concerted activity under the Act.
About 10:30 a.m. on December 13, Respondent's man-
ager Todd and Respondent's attorney Borrello met with
Union Representative Havalda, Tolfree, and Vickers. At-.
torney Borrello immediately advised Tolfree and Vickers
that they were fired for engaging in unauthorized picket-
ing in violation of the contract. During the meeting the
parties discussed the cessation of work, the complaints
about work safety, safety gear, and the suspension of
Tolfree and Vickers for engaging in unauthorized picket-
ing on both occasions, in violation of the previously
cited sections of the collective-bargaining agreement.
After the meeting, Tolfree and Vickers went to the
union hall and filed a grievance on their discharge and
their prior grievance was consolidated with their dis-
charge grievance dated December 13.
Analysis and Conclusions
In Olin Corp., 268 NLRB 573, 576 (1984), the collec-
tive-bargaining agreement between the parties contained
a provision which, in part, provided, that:
[N]either the Local Union nor the International
Union, nor any officer or representattive [sic] of
either, will cause or permit its members to cause any
strike, slowdown or stoppage (total or partial) of work
or any interference, directly, with the full operation of
the plant (Emphasis added.]
On December 17, 1980, Olin suspended two pipefitters
for refusing to perform a work assignment which they
considered was more appropriately millwright work.
Consequently, a "sick out" (employees leaving work
with medical excuses) ensued involving 43 employees, in-
cluding Union President Spatorico. Pursuant to the
above contract provision, Olin discharged Spatorico, as a
union officer for threatening, participating in, and failing
to prevent the "sick out." Spatorico's discharge was
grieved to arbitration and the arbitrator found that Spa-
torico "at least partially caused or participated" in the
"sick out" without trying to stop it or before it occurred,
and that such conduct by a union officer was in violation
of the above-cited contract provision for which he was
properly discharged. When the unfair labor practice
charge was presented for hearing, the administrative law
judge declined to defer to the arbitrator's award because
he found the arbitrator did not seriously consider the
unfair labor practice issue and because he did not refer to
the statutory right and waiver question in his decision.
However, the judge agreed that Spatorico's conduct vio-
lated the contract, and that he was properly discharged.
The Board agreed with the judge's conclusion, but it did
so without considering the merits because it concluded it
would defer to the arbitrator's award where it is consist-
ent with the standards set forth in Spielberg, supra.
There, the Board held that it would defer where:
1. The proceedings appear to have been fair and regu-
lar.
2. All parties have agreed to be bound by the arbitra-
tor's award.
3. The decision of the arbitrator is not clearly repug-
nant to the purposes and policies of the Act.
In amplifying these standards in Olin Corp., the Board
held that the appropriateness of deferral should be con-
sidered before considering the merits of the arbitrator's
award. More specifically, the Board said it would defer
to an arbitrator's award if:
(1) An arbitrator has adequately considered the unfair
labor practice.
(2) The contractual issue is factually paralleled to the
unfair labor practice issue.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) The arbitrator was presented generally with the
facts relevant to resolving the unfair labor practice.
Kansas City Star Co., 236 NLRB 866 (1978); Atlantic
Steel Co., 245 NLRB 814 (1979), International Harvester
Co., 138 NLRB 923, 929 (1962).
In applying these standards for a deferral determina-
tion, the Board further stated that the following factors
should be taken into consideration:
(4) Any differences between the contractual and statu-
tory standards of review should be weighed in determin-
ing whether an award is "repugnant" to the Act.
(5) Such determination need not be totally consistent
with Board precedent. International Harvester Co., supra;
Ramsey Y. NLRB, 327 F.2d 784 (7th Cir. 1964).
(6) The arbitrator's award is palpably wrong, i.e.,
unless the arbitrator's decision is not susceptible to an in-
terpretation consistent with the Act.
(7) The parties seeking to have the Board reject defer-
ral and consider the merits must show that the above
standards for deferral have not been met.
Pursuant to the grievance arbitration provisions of the
collective-bargaining agreement in the instant case, both
grievances were heard by the Michigan Industrial Board
on December 18, 1979. Present for the 'Respondent were
President Andersen and Manager Todd. Tolfree and
Vickers appeared and were represented by Union Repre-
sentative Havalda, who recited the events which led to
the picketing as found in the administrative law judge's
decision. Havalda apprised the Industrial Board of Re-
spondent's failure to correct the conditions which were
the subject of the safety complaints of the picketing em-
ployees before their discharge.
Having been informed of the picketing and the reasons
for the picketing by Vickers and Tolfree, neither the In-
dustrial Board nor the parties according to the record
ever addressed or considered Section 7 of the National
Labor Relations Act, and how that section has been con-
strued and applied by the Board and the courts with re-
spect to the concerted nature of the picketing activity of
Tolfree and Vickers, in conjunction with Respondent's
application of article VIII, section 3, and article II of the
collective-bargaining agreement.
Nor does the record show that the parties or the
Board ever addressed or considered whether the nature
of the protected picketing constituted a grievance which
required immediate relief, for which the grievance-arbi-
tration procedure, as written, does not provide an ade-
quate remedy. This is particularly significant since Vick-
ers and Tolfree verbally made known their safety com-
plaints to their supervisor (Wilson), who did not rescind
the work assignment or correct the alleged unsafe work
conditions; as well as the fact that pursuing the grievance
procedure further would have entailed considerable time
(days, possibly weeks) without any assurance that their
complaints would have been resolved in the end
The evidence unequivocally established, and the judge
found, that Vickers and Tolfree resorted to their picket-
ing activity on December 7 because Respondent ordered
them to perform work in the rain without safety equip-
ment and weather gear The work also posed a risk of
their being electrocuted, and that their picketing under
such circumstances constituted concerted activity for
their mutual aid and protection and was, therefore, activ-
ity protected by Section 7 of the Act. NLRB v. Washing-
ton Aluminum Co., 370 U S. 9 (1962); Brown & Root, Inc.,
246 NLRB 33 (1979), enfd. 634 F 2d 816 (5th Cir. 1981);
Morrison-Knudsen Co, 173 NLRB 56 and cases cited at
59 fn. 11 (1968), enfd. 418 F.2d 203 (9th Cit. 1969).
The judge further found that because the work Vick-
ers was ordered to perform was believed by Vickers and
Tolfree to involve a risk of danger (electrocution, as well
as ill health and/or personal injury), the length of time
necessary to process a grievance under the grievance
procedure (days or weeks, depending on the steps to be
exhausted in the effort) justified the immediate and pro-
tected protest picketing action taken by Vickers, Tolfree,
and Mathews. Redwing Carriers, 130 NLRB 1208 (1961),
enfd. 325 F.2d 1011; Gateway Coal v. United Mine Work-
ers, 414 U.S. 368 (1974). All of the above-cited cases in-
volved an official construction and application of the lan-
guage of Section 7 and Section 8(a)(1) of the Act by the
Board and the courts.
After the dispute appeared to have been resolved in
the meeting between Respondent and the Union on De-
cember 7, Vickers and Tolfree reported to work on
Monday, December 10, as they were advised by the Re-
spondent. They worked on December 10, 11, and a part
of the day on December 12, until they were suspended
by Respondent for engaging in the picketing activity on
December 1.1
It is significant to note, as the evidence shows, that
Vickers and Tolfree picketed the Respondent on Decem-
ber 13 for suspending them and because the unsafe work
conditions about which they complained and picketed on
December 7 had not been corrected. The safety com-
plaints of the Charging Parties were discussed in the De-
cember 13 discharge meeting between Respondent and
the Union. At that time, Respondent brought in seven or
eight defective and unclean headgear. However, Re-
spondent apparently ignored the safety complaints and
the grievance discussion on safety when it announced
that Vickers and Tolfree were discharged for causing an
unauthorized cessation of work on December 7 and for
failing to utilize the grievance procedure to resolve the
dispute about the safety conditions and their suspensions.
In its defense, Respondent appears to be arguing that
its reasons for discharging the Charging Parties on De-
cember 13 were for causing an unauthorized work stop-
page on December 7 and for their willful disregard of
the grievance-arbitration procedure of the contract be-
cause any disagreement with Respondent's actions should
have been grieved by them under the grievance proce-
dure
The evidence and the judge's findings are clear, how-
ever, that Vickers and Tolfree resumed their picketing
on December 13 because of their suspension and their
continued complaints about uncorrected, unsafe work
conditions. As late as the hearing before the Industrial
Board in March 1980, the parties submitted to the Michi-
i It should be noted that at this puncture Respondent's suspension of
Vickers and Tolfree was clearly stated by Respondent to have been
based on the unquestionable protected concerted picketing by Vickers
and Tolfree on December 7
ANDERSEN SAND & GRAVEL CO.
gan Occupational Safety and Health Administration
(MIOSHA) the report on the safety investigation of the
Respondent's plant. Moreover, the administrative law
judge found that Respondent's suspension and discharge
of Vickers and Tolfree were motivated by their com-
plaints and picketing about unsafe working conditions, as
well as for their suspension for picketing about those
conditions, in violation of Section 8(a)(1) and (3) of the
Act.
Notwithstanding, even if Tolfree and Vickers had en-
gaged in the December 13 picketing solely in protest of
their unlawful December 13 discharge, I would have
great difficulty attempting, to separate the protest of their
unlawful suspension from their picketing on December
13, in protest of their discharge for protesting the unlaw-
ful suspension. The foregoing conclusion is particularly
true when it is considered in conjunction with how Re-
spondent, and presumably the Industrial Board, errone-
ously construed and unlawfully applied article VI][I, sec-
tion 3 of the contract (causing unauthorized work stop-
page for the first 24 hours), without receiving and con-
sidering the unfair labor practice law (Sec. 7 and Sec.
8(a)(1) of the Act and cases construing and applying
these sections). Under these circumstances the law was
very much a part of a factual determination in order to
dispose of the contractual and statutory issues
It is not arguable that the Industrial Board, by virtue
of the contract provision, has jurisdiction to interpret ar-
ticle VIII, section 3, and the entire collective-bargaining
agreement between the parties. The parties agreed to be
bound by the arbitration decision of the Industrial Board.
However, although the contractual issue presented is
whether the picketing conduct of Vickers and Tolfree
violated specific language in the contract (arts. VIII and
II), the statutory issue in which Vickers and Tolfree en-
gaged is protected under the statute (the Act). A deter-
mination of one does not automatically result in the reso-
lution of the other. Consequently the contractual issue
herein is not parallel to the unfair labor practice (statuto-
ry) issue, even though they may be factually parallel.
Badger Meter, 272 NLRB 824 (1984).
Thus in keeping with the other standards for deferral
to arbitration enunciated by the Board in Olin Corp.,
supra, the record shows, and I find the following:
1. Since the Industrial Board (arbitrator) was not pre-
sented with the substance or a copy of Section 7 and
Section 8(a)(1) of the Act, nor with Board and/or court
decisions construing and applying these sections of the
Act, the arbitrator was not presented with the facts (the
law) relevant to resolving the unfair labor practice (the
validity of employer suspending employees for engaging
in protected concerted picketing activity).
2. The Industrial Board (arbitrator) did not consider
the unfair labor practice (whether the picketing was
statutorily protected and, if so, was Respondent's suspen-
sions and discharges of the picketers motivated by the
picketing because it did not receive nor consider the law
defining the unfair labor practice (Section 7 and Section
8(a)(1) of the Act), and cases construing or applying that
law.
3. The contractual standards of review differ from the
statutory standards of review in that the former only re-
1215
quire determining whether the picketing conduct is in
violation of language in the contract, while the latter re-
quire a determination whether the picketing conduct was
concerted and for the mutual aid and protection of em-
ployees and, therefore, protected by Section 7 of the
Act. Washington Aluminum Co., supra
4. Not having considered the validity of the lawful and
protected December 7 concerted picketing, the decision
of the Industrial Board is clearly repugnant to the pur-
poses and policies of the Act. Spielberg Co., and Olin
Corp., supra.
Additionally, as pointed out in the judge's decision, a
reading of the pertinent portion of article VIII, section 3
of the contract between the parties provided as follows:
[I]t is specifically understood and agreed that the
Company during the first twenty-four (24) hours of
such unauthorized work stoppage shall have the sole
and complete right of reasonable discipline short of dis-
charge.
The contract does not explain what is meant by the
"first twenty-four (24) hours of such unauthorized work
stoppage," that is, whether 24 hours means a 24-hour
day, or three times 8 hours which equals 3 working days.
In the absence of such specificity, it would appear that
the literal interpretation of the above language means
three 8-hour working days, rather than a 24-hour day.
Moreover, since the language of the entire paragraph
under article VIII, section 3, makes it clear that the
object of such time provision is to enable the Union to
try to persuade the striking or picketing employees to
return to work within the 24-hour period, it is only rea-
sonable to conclude that the Union would, in all proba-
bility, need more than a 24-hour day within which to ac-
complish that objective. Consequently, the only logical
meaning to be attributed to such language is three 8-hour
working days. In this regard, the record shows that the
picketing activities of the Charging Parties on December
7 caused an unauthorized cessation of work at the plant
from the noon lunch hour until the remainder of the
workday, which totaled about 4 hours. The picketing on
December 13 caused a cessation of work of 3 hours
before Tolfree and Vickers were discharged. However,
since the work force did not return to work for the re-
mainder of the day, their picketing caused a cessation of
work of the full 8-hour day. Therefore, the picketing on
December 7 and 13 caused a total work stoppage of 15
hours, not 24 hours.
It would appear that the Industrial Board did not even
properly and fairly construe article VIII, section 3 of the
contract, since no evidence of bargaining history or past
practice involving application of this provision was sub-
mitted or discussed at the arbitration hearing.
Finally, it is clear from the above analysis of the
record findings that the Industrial Board's decision is pal-
pably wrong and inconsistent with the objectives of Sec-
tion 7 and Section 8(a)(1) of the Act (the right of em-
ployees to engage in concerted activity for their mutual
aid and protection, free from acts of restraint or coercion
by their employer).
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record does not show that the Union, by language
in the contract or conduct by the Union, waived the
Section 7 rights of union members. In the absence of
such evidence, the Industrial Board could not have
found that the Union waived Section 7 rights of its mem-
bers. John Morrell & Co., 270 NLRB 1 (1984). Moreover,
since the General Counsel established that the arbitration
hearing before the Industrial Board was not recorded
and no findings of fact or written disposition of the issues
were made, I am satisfied that she has discharged her
burden of persuasion in demonstrating meritorious defi-
ciences in the arbitral process.
Consequently, based on the entire record and above-
discussed reasons, I conclude and find that the Industrial
Board's decision is clearly repugnant to the purpose and
policies of the Act, and I deem it inappropriate to defer
to its decision.2
2 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.