W. R. Grace & Co.

National Labor Relations Board - Board Decisions

Nov 5, 1969

179 N.L.R.B. 500 (N.L.R.B. 1969)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. R. Grace & Co., Southbridge Plastics Division
and Grady Eddings. Case 26-CA-3089
November 5, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On June 24, 1969, Trial Examiner Myron S.
Waks issued his Decision in the above-entitled
proceeding, recommending that the complaint be
dismissed, as set forth in the attached Trial
Examiner's Decision. Thereafter the General
Counsel filed exceptions to the Decision, together
with a supporting brief, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MYRON S WAKS, Trial Examiner This case, tried at
Selma, Tennessee, on January 7 and 8, 1969, pursuant to
a charge filed on June 3, 1968,' and a complaint issued
September 5, presents the question first whether the Board
should defer to an arbitrator's decision issued October 28,
and, if such deferral is not warranted, whether the
Respondent discharged Loyd Whirley in violation of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, in that it condoned his participation in
an unlawful strike and later discharged him, at least in
part, for this reason
Respondent's motion made at the beginning of the
hearing,' which I then denied, and later renewed in its
brief, to dismiss the complaint in deference to the
arbitrator's award is disposed of in accordance with the
decision hereinafter set forth.
'All dates hereinafter referred to occurred in 1968
'On October 16 Respondent had filed a pretrial motion that the
Upon the entire record in this case and after due
consideration of the briefs filed by the parties , I make the
following
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The pleadings establish and I find that the Company is
engaged in the manufacture of plastic products at its plant
in Corinth, Mississippi, further that the Company, during
the 12 months preceding the issuance of complaint, in the
course of its business operations received at its Corinth,
Mississippi, location, products valued in excess of $50,000
directly from points located outside the State of
Mississippi, and, during the same period, sold and shipped
from its Corinth, Mississippi, location, products valued in
excess of $50,000 directly to points located outside the
State of Mississippi Upon these admitted facts, it is
conceded and I find that the Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II THE LABOR ORGANIZATIONS INVOLVED
The pleadings further establish and I find that Local
Union No 759 and the International Union of United
Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO, are now, and have been at all times material
herein, labor organizations within the meaning of Section
2(5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
The central question presented by the complaint, which
alleges a violation of the Act based on the discharge of
Loyd Whirley, is whether Whirley's discharge for his role
in a breach-of-contract strike was unlawful because
Respondent had condoned the unlawful aspect of this
otherwise protected concerted activity' The threshhold
question, the resolution of which I find makes unnecessary
a determination of the issue presented by the complaint, is
whether the Board should defer to an arbitrator's award
which, inter alia , upheld the Company's action in
discharging Whirley
A The Discharge of Whirlev
In order that the arguments of the parties and my
decision concerning the question of deferring to the
arbitration award may be fully understood, there is set
forth below the circumstances surrounding the discharge
of Whirley
Upon reporting to work on May 13, at 3 p m (the start
of the second shift), the alleged discriminatee, Whirley, a
utility laborer for the Respondent since January 17,
parked his car in an unauthorized space When Whirley
complaint herein be dismissed and that the Board defer to the arbitrator's
award, that was denied on December 3 by Associate Chief Trial Examiner
Charles W Schneider, who concluded on the basis of the award and the
briefs of parties that there were issues presented which might be
illuminated by an evidentiary hearing
'There is no dispute between the parties that the strike was in breach of
contract or that the discharge of Whirley was based, at least in part, on
Whirley's role in the strike
'In setting forth the events which culminated in Whirley's discharge, it
has been my intention to refrain from any suggestion as to how I would
have ruled on any facts in dispute had I considered the case on its merits
179 NLRB No. 81
W. R. GRACE & CO. 501
returned to his car at 11 p m that night, he found a ticket
ha-' been placed under his windshield wiper by the guard
and that the wiper was damaged. Whirley repaired the
wiper at a cost of $7.50, and on May 14 reported this
matter to Personnel Director Robinson, claimed that the
wiper had been damaged by the guard who placed the
ticket there, and requested that the Company reimburse
him for the wiper Later that evening, Robinson spoke to
Whirley and informed him that he would have to prove
that the guard had broken the wiper before the Company
would reimburse him Whirley thereafter related the
substance of his conversation with Robinson to his fellow
employees And there is testimony which would indicate
that this was the precipitating factor in the walkout which
followed
At 7 p.m. that evening the employees in the print shop
including Whirley engaged in a walkout leaving the
company premises, they were subsequently joined by a
majority of the second-shift employees. The striking
employees first gathered in cars and on foot on the road
in front of the plant There is testimony that Whirley was
one of the first employees to punch out and was observed
waving other employees to join the group on the road.
During the time the striking employees were on the road
Respondent's Production Manager Wayne Small inquired
of them the reason for the strike and was told of various
grievances including the problem of parking spaces. There
is also testimony that Union Treasurer Ralph Lambert
told the strikers that they were acting in breach of
contract, that he requested them to return to work, and
that he stated that the Union might suffer the
consequences if they did not The employees were also
advised that the company representative would meet with
them on the company premises in an attempt to resolve
their grievances; however, the striking employees refused
to meet with the Company on the plant premises insisting
that any meetings would have to be at the union hall This
was agreed to and the employees repaired to the union
hall where what was described as a noisy meeting ensued.
Supervisors Wayne Small and Joe Brewer were present
throughout the meeting Personnel Director Robinson,
who was not present at the plant when the walkout
occurred, arrived at the hall later, and spoke to the
employees. There is a sharp conflict in testimony as to
what was said by Robinson at the meeting. It is not
disputed that Robinson advised the employees that they
were in breach of contract and requested that they return
to work. General Counsel's witnesses testified that
Robinson also told the employees that if they returned to
work before the start of the 11 p.m shift no disciplinary
action would be taken This was denied by Robinson.
Several other witnesses were called by Respondent,
including officers of the local union, who testified that
they had heard no such promise made. Robinson testified
that in fact he had responded to a question in this regard
by an unidentified employee by stating he could make no
promises since Ira Frantzman, the operations manager,
was out of the city and he would have to discuss the
matter with him There was further testimony by
Robinson and local union officers that after they had
returned to the plant they had questioned Robinson, first
in the guard house and later in his office, as to what
disciplinary action, if any, the Company would take
because of the strike, and that Robinson had indicated he
did not know because Frantzman was out of the city.
According to Robinson, following the walkout he
instituted an investigation to learn who the instigators had
been, that based on the information disclosed by the
investigation he was satisfied that Whirley was a leader in
the strike. Robinson then testified that in a later
conversation with Whirley he learned that Whirley had
been employed by Guardsmark, a guard service company
used by the Employer, and because of an agreement with
Guardsmark not to hire their employees he had checked
Whirley's file and learned for the first time that Whirley
had failed to list Guardsmark as a prior employer on his
application form Robinson further testified that this was
an offense which the Company has regarded as a
sufficient basis to deny employment to an applicant or to
discharge an employee already on the job The Company
would not have learned of Whirley's omission on the
employment form in the ordinary course of events and
was made aware of it as a result of its activities in
connection with the investigation of the May 14 strike
According to the Company upon Frantzman's return to
the plant on Tuesday, May 21, Robinson discussed with
Frantzman what he had learned regarding Whirley's role
in the strike and Whirley's failure to disclose his prior
employment with Guardsmark Whirley's suspension with
a view to discharge in accordance with the terms of the
collective-bargaining agreement for what was believed to
be his leadership role in the strike and his omission on his
employment form was agreed to by Frantzman Whirley
was informed of the Company's decision on May 24,
when he was suspended with a view to discharge, on May
28, Whirley received his paycheck and discharge papers
through the mail
B. The Arbitration Proceeding and the Award
Upholding the Discharge of Whirley
Following his notification of discharge , a grievance
signed by Whirley and a union committeeman was filed
under the contract on May 31.5 On October 17 an
arbitration proceeding was held before Arbitrator Tony
Sabella in which the grievances arising from the discharge
of Whirley and the disciplinary action taken against
participants in the May 25, as well as the May 14 strike
was submitted On October 28, the arbitrator issued his
opinion and award upholding the Company ' s discipline of
the strikers including Whirley
In his opinion and award , the arbitrator , noted certain
facts which are undisputed . Thus the arbitrator noted the
stipulation of the parties that the grievants including
Whirley had participated in an illegal work stoppage on
May 14 and/or May 25, 1968 The arbitrator also noted
that the Company in the past had been "plagued by a
series of work stoppages " As to the walkouts involved in
the case before him the arbitrator found that during the
May 14 strike, Personnel Director Robinson "informed
the assembled group of their illegal action and requested
them to return to work," that "[t]he meeting got out of
hand and the Company Officials decided to leave," that
shortly thereafter the walkout ended; the arbitrator also
found that the May 25 walkout was related to grievant
Whirley's discharge.
Directing his attention to the May 14 stoppage and
Whirley's discharge, the arbitrator found "no decision
'On June 3, Grady Eddings, as an individual , filed the 8 (a)(1) and (3)
charge in this case alleging discrimination by the Company as to 20
employees including Whirley The charge was filed after a further strike on
May 25 to protest Whirley's discharge had resulted in the discharge or
suspension of the named employees for their participation in both the
strikes of May 14 and 25 or the strike of May 25 only The charge was
dismissed as to all named employees except Whirley as to whom this
complaint issued
502 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regarding a discharge was made immediately because
plant Manager Frantzman was out of town and no
decision could be made in his absence because he had so
ordered in the light of the tense situation and threats of
walkouts for discharges", that, following Frantzman's
return the following Tuesday, "a decision, cleared with the
local attorney, to discharge grievant Whirley was made
because he was a `leader' in the walkout, had urged the
employees to clock out and had falsified his application
for employment by not including employment with and
discharge by an independent plant protection agency, also
employed by the Company." The arbitrator thereafter
stated with regard to the May 25 walkout that "The
discharge of Whirley even if illegal and in violation of
the agreement does not justify the walkout However the
discharge of grievant Whirley does not appear to have
been in violation of the agreement, or illegal." After
rejecting the Union's contention of condonation based on
the lapse of time between Whirley's application and his
discharge, in part, for falsification of the application, the
arbitrator states, "In any event the Company was
justified in discharging grievant Whirley for the May 14th
walkout " The arbitrator then considered the Union's
contention that company officials present at the May 14
meeting including Robinson promised no reprisals if the
employees returned to work, concluding, "Based on the
entire record the undersigned does not find that such
agreement or promise was made."
Finally, the arbitrator who did not discuss the cases of
the other individual grievants concluded that the factors
used to determine discipline was proper and
nondiscriminatory
C. Analysis of the Issues Presented Regarding
Deference to the Arbitration Award
discharge, moreover that the limitation on the arbitrator's
authority in the collective-bargaining agreement precluded
the arbitrator in this case from fully considering the
question of condonation which is presented by this
complaint In addition the General Counsel urges that the
"due process" aspects of the Board's standards were not
met According to the General Counsel, because a union
officer during the walkout on May 14 expressed some
concern to the strikers with regard to potential union
liability for the unauthorized strike, the "interests of Loyd
C Whirley and the [Union] are not neccessarily
identical in this peculiar situation, and thus no
presumption of regularity should attach to the arbitration
proceedings " Furthermore, the General Counsel
argues that because there is no transcript of the
arbitration proceeding it is impossible to determine
the regularity of the proceeding. It is General Counsel's
position that in view of the foregoing the evidence
adduced by Respondent on this record is insufficient to
establish that the arbitration proceeding was "fair
and regular."
It is Respondent's position that the Board's standards
for deference to the arbitration have been met and that
this has been established in the record in this case
Respondent argues that the arbitrator's authority under
the contract did not preclude his consideration of the issue
of condonation under the Act, but rather required it, that
the arbitrator in fact considered the question of
condonation under the Act, that the arbitrator's decision
was not repugnant to the policies of the Act, and that the
proceeding was "fair and regular "
Thus the issues raised by the parties on the question of
deferral to the arbitration are (1) whether the question of
condonation posited by the complaint was considered by
the arbitrator and (2) whether the arbitration proceeding
met the Board's requirement of essential fairness
It is well established that the Board is not precluded
from adjudicating unfair labor practice charges even
though they have been the subject of an arbitration
proceeding and award It is also well established that the
Board has considerable discretion to respect an arbitration
award and decline to exercise its authority over alleged
unfair labor practices if to do so will promote industrial
peace and stability by encouraging the practice and
procedure of collective bargaining
The Board's basic guides for its hospitable acceptance
of the arbitral process as set forth in Spielberg
Manufacturing Company, 112 NLRB 1080, 1082, require
as to the arbitration that the "proceedings appear to have
been fair and regular, all parties had agreed to be bound,
and the decision of the [arbitrator] is not clearly
repugnant to the purposes and policies of the Act " In
International Harvester Company, 138 NLRB 923, the
Board reiterated and elaborated on these standards stating
that it would withhold its authority to adjudicate unfair
labor practice charges involving the same subject matter,
"unless it clearly appears that the arbitration proceedings
were tainted by fraud, collusion, unfairness, or serious
procedural irregularities or that the award was clearly
repugnant to the purposes and policies of the Act."
General Counsel, recognizing the Board's policy as set
forth above, nonetheless contends that in this case there
should be no deferral to the arbitrator's award, which the
parties had agreed would be final and binding, because he
asserts it did not meet the standards which the Board
required In support of his position the General Counsel
asserts that the arbitrator did not consider all aspects of
the Board's condonation doctrine in upholding the
l Whether the question of condonation posited by
the complaint was considered by the arbitrator
General Counsel's argument on this aspect of the case
appears to be bottomed on what he perceives to be the
application of a test for condonation at odds with that of
the Board's as demonstrated by its decision in Packers
Hide Association, Inc , 152 NLRB 655.° The General
'The Board had found on the stipulated facts of that case that the
respondent had condoned the discriminatee ' s conduct in instigating a
breach-of-contract strike and that his later discharge therefore was
violative of Sec 8(a)(3) and (1) of the Act In that case the employees, led
by the discriminatee , a union steward , had walked out to protest the
discharge of Christiansen, a fellow employee, who had refused to perform
a temporary assignment Respondent at 2 p m that afternoon told the
employees that they could come back to work but that Christiansen was
"fired " Later that afternoon , respondent told the union representative "it
would be okay" for the employees to return to work but that he would not
take back Christiansen, that a meeting would be held with the union the
following afternoon All employees returned to work the following day
When respondent met with the union the discipline as to Christiansen was
adjusted , but the union steward was discharged for instigating the strike
The Board in finding condonation concluded on the facts that the
respondent in returning the strikers to work said nothing about a meeting
with the union and made no reservation , actual or potential, limiting the
status of the strikers in any respect upon their return to work The Board
noted that at the time of the conversations returning the strikers to work
the respondent was aware of the discriminatee 's role in the strike It was
the Board 's view that the scheduled meeting was to consider the discharge
of Christiansen and was not intended by the parties to leave open any
question pertaining to the discipline of the strikers , that respondent's
decision to return the strikers had been to "forgive and forget" all aspects
of the strike including both leadership and participation Accordingly the
W. R. GRACE & CO. 503
Counsel concedes that the arbitrator determined that
Respondent made no express promise to or agreement
with its employees that reprisals would not be taken for
the May 14 walkout. However, the General Counsel
argues (citing the Board's Decision in Packers Hide,
supra) that condonation can occur in a manner other than
by express promise or agreement and contends that the
arbitrator did not consider this in reaching his decision. In
support of this contention the General Counsel argues that
the arbitrator's opinion does not reflect his consideration
of this aspect of condonation General Counsel argues
further that, since the arbitrator's authority under article
IV, section 3 of the collective agreement ' was "confined
exclusively" to the interpretation of the provisions at issue
between the parties and he could not "add to, adjust, or
modify any provision of [the] Agreement," this precluded
the arbitrator, in determining whether Whirley's discharge
was for "good cause,"' from considering whether there
was such condonation of Whirley's strike conduct under
the Act as to make his discharge unlawful.' Relying on
the Board's decision in the Raytheon case,'° the General
Counsel urges that since the arbitrator was precluded by
the contract from considering the question of condonation
under the Act and his opinion does not reflect that he
made such a determination, deference to his award would
Board concluded that by inviting the strikers to return to work, under the
circumstances present, the respondent had condoned the breach of
contract
The Court of Appeals for the Eighth Circuit which reversed the Board's
Decision (360 F 2d 59) viewed respondent 's conduct in a different light It
noted as regards respondent ' s action in offering to return the strikers to
work at 2 p in that "This action should not be resurrected as evidence of
condonation as the invitation was not accompanied with an indication of
waiver of disciplinary action " It rejected the inference that the meeting the
next day was to discuss Christiansen's discharge merely, and found no
evidence that the company "had any intention of `wiping the slate clean'
and forgiving the strikers ' misconduct " The court found nothing was said
to indicate that the permissible return to work resolved the problem in that
it was for any duration other than until an orderly meeting could be held
and the matter discussed In the court ' s view there was "an obvious
misunderstanding by the Board of the doctrine of condonation " It stated
"Condonation can be found and is invocable only where there is clear and
convincing evidence that the employer has completely forgiven the guilty
employee for his misconduct - and agrees to a resumption of
company-employee relationship as though no misconduct has occurred
The doctrine prohibits an employer from misleadingly agreeing to return
its employees to work and then taking disciplinary action for something
apparently forgiven " As discussed infra, the test for condonation
articulated by the court, was later cited with approval by the Board in
American River Constructors . 163 NLRB No 67
'Art IV, sec 3, provides
Jurisdiction and authority of the Arbitrator of the grievance and his
opinion and award shall be confined exclusively to the interpretation of
the explicit provision or provisions of this Agreement at issue between
the Union and the Company He shall have no authority to add to,
adjust, change or modify any provision of this Agreement
'The agreement provides (art 11) that -
the Management of the Company and the direction of the
working force includes the right to discharge for a good cause
'General Counsel ' s argument that condonation as applied to Whirley's
discharge was considered only as applied to Whirley ' s omission on the
application form, I find to be clearly without merit It is readily apparent
from the arbitrator' s opinion that the issue of condonation relating to
Whirley' s strike activity was considered The arbitrator states ( at p 5),
"the Company was justified in discharging grievant Whitley for the May
14th walkout " and proceeds to find Respondent made no promise or
agreement that there would be no discipline of strikers if they returned to
work The arbitrator also found that the delay in the discharge of Whitley
was due to the absence of Operations Manager Frantzman with whom
such disciplinary action had to be cleared
' '140 NLRB 883, enforcement denied (on other grounds ) 326 F 2d 471
(C A 1)
not be warranted under the Board's standards
In response to the General Counsel's argument that the
arbitrator was precluded by the collective-bargaining
agreement from determining the lawfullness of Whirley's
discharge under the Act, the Respondent asserts that both
article IV, section 3 of the contract, imposing limitations
on the authority of the arbitrator, and article II of the
contract, limiting discharge to "good cause," must be read
together with article VI, section 2, entitled
"Non-Discrimination " Under article VI, section 2, the
Union and the Company undertake to "abide by and
comply with all applicable Federal Laws banning
discrimination in regard to hire, promotions and job
assignments" and emphasizes that the parties understand
"that neither the Company or the Union or their agents
or members will discriminate against or coerce any
employee because of his membership or non-membership
in the Union . ."" On the basis of this provision the
Respondent asserts that the contract contemplates
prohibitions against discharge under the Act, and the
arbitrator perforce was required to consider the unfair
labor practice question presented in the complaint in
arriving at his decision as to Whirley's discharge under the
contract
In view of article II and article VI, section 2, of the
contract, and in light of the position taken by the
Respondent in the arbitration proceeding as well as the
language of the arbitrator's opinion, I conclude that the
contract required the arbitrator to determine the legality
of Whirley's discharge in deciding whether there was
"good cause" for the Employer's action. Thus, in
discussing the May 25 strike in protest of Whirley's
discharge the arbitrator in his opinion states, "The
discharge of grievant Whirley . even if illegal and in
violation of the agreement does not justify the walkout.
However the discharge of grievant Whirley does not
appear to have been in violation of the agreement, or
illegal." (Emphasis supplied ) Furthermore it appears
from the record in this case that the reference by the
arbitrator to the lawfullness of Whirley's discharge was to
the Act Respondent, who apparently regarded the Act as
applicable to the question of whether there had been
employer condonation of Whirley's conduct during the
May 14 strike, presented the question for the arbitrator's
determination within the framework of the condonation
doctrine as applied under the Act. Thus in his arbitration
brief the Respondent in discussing the question of
condonation relied on cases arising under the Act in
urging to the arbitrator that the Company's action did not
constitute condonation of Whirley's conduct. The cases
argued to the arbitrator included inter alia the court's
decision in Packers Hide Association v. N L R B , supra,
and the test for condonation set forth by the court in that
case.
"Art V1, sec 2, provides
I Both the Company and the Union agree that they will not
discriminate against any employee because of sex, race, color, creed,
age, nationality or religious beliefs and that both parties will abide by
and comply with all applicable Federal Laws banning discrimination in
regard to hire, promotions and job assignments It is understood that the
application of this Article and Section applies specifically to such
discrimination as prohibited by Federal Law such as discrimination due
to an employee ' s sex, race , color, creed , age, nationality or religious
beliefs
2 It is additionally understood that neither the Company or the
Union or their agents or members will discriminate against or coerce
any employee because of his membership or non-membership in the
Union and all employees are equally free to become or not to become
members of the Union
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, even if the arbitrator was not required
under article VI, section 2, to consider the lawfulness of
Whirley's discharge under the Act, I nonetheless find,
based on the law of condonation argued to the arbitrator,
that the law applied in determining condonation was that
applied in Board cases. And since the issue presented to
the arbitrator was the same as that which is presented by
the complaint and I am satisfied that the law applied was
also the same as that which would be applied in this
proceeding, General Counsel's argument on this aspect of
the case would be without merit
In concluding that the question of condonation was
determined under the law applied in Board cases, I find
no merit to the General Counsel's argument that the
arbitrator's opinion reflects a test for condonation which
would require an express promise by the Employer of no
disciplinary action Similarly, I find no merit to the
argument that the arbitrator's finding that "Personnal
Director Robinson spoke to the employees on the night of
May 14, 1968 and `informed the assembled group of their
illegal action and requested them to return to work"'
demonstrates a misapplication of the Board's condonation
doctrine since under the Board's Decision in Packers
Hide this would support a finding of condonation In the
first place I am not persuaded in this case that because
the arbitrator directed his attention to the question of an
alleged express promise to forgive the employees' strike
activity it follows therefore that the arbitrator did not
consider all the circumstances in arriving at his conclusion
that there was no employer condonation It appears rather
that the arbitrator in directing his attention to the
question of an express promise by the Employer was
merely meeting the thrust of the Union's factual argument
at the arbitration proceeding In addition I note that the
arbitrator stated that his conclusion •as to this aspect of
the case was "Based on the entire record " Furthermore, I
find that the court's decision in Packers Hide, which was
argued to the arbitrator, does not delineate a test at odds
with that of the Board. For while the reviewing court in
Packers Hide believed the Board had applied a test in that
case different from that which in its view the law required,
the Board thereafter indicated that it had no disagreement
with the court regarding the test to be followed For in
the latter case of American River Constructors, 163
NLRB No 67, the Board in passing on a question of
condonation expressly relied on the test articulated by the
court in Packers Hide, stating "A court of appeals has
recently stated that the Board's doctrine of condonation
'prohibits I an employer from misleadingly agreeing to
return its employees to work and then taking disciplinary
action for something apparently forgiven "' Thus reliance
by the arbitrator on the test set forth by the court in
Packers Hide could not in the circumstances be said to
depart from the standards applied by the Board in such
cases, so as to have resulted in a decision at odds with the
Board's view of the law.' 2
"If the General Counsel by his argument is suggesting withholding
deference to the arbitrator ' s award because the arbitrator' s result in
applying a proper test of condonation differs from that which might be
reached by the Board , his argument is clearly without merit The scope of
review of an arbitrator ' s decision does not comprehend withholding
deference to an award where the arbitrator , in weighing the inferences
which may reasonably be drawn from the facts , has made a finding
different from that which the Board may have reached in considering the
matter de novo Spielberg Manufacturing Co , supra in any event it does
not follow from the Board 's opinion in Packers Hide that it would have
found condonation in this case Applying the proper test , the issue becomes
one of fact turning on the peculiar circumstances in each case In Packers
Accordingly, I conclude that the arbitrator was not
precluded in this case from considering the issue of
condonation as posited by the unfair labor practice
complaint, that the issue was litigated, that the law
presented for his consideration in resolving the issue was
the law applicable in cases arising under the Act, and that
his decision, which I find evidences his consideration of
the lawfulness of the discharge, in any event does not
reflect a misapplication of the law to be applied, and is
not clearly repugnant to the policies of the Act 13
2. Whether the arbitration proceeding met the
Board's requirements of essential fairness
The remaining question raised by the General Counsel's
argument opposing deferral to the arbitrator's award is
whether the standard of "due process" required by the
Board in arbitration proceedings has been met in this
case As noted earlier the Board has stated that it will
defer to an award "unless it clearly appears that the
arbitration proceedings were tainted by fraud, collusion,
unfairness, or serious procedural irregularities .. "' ° The
grounds urged by General Counsel in opposition to
deferral fall short of meeting this standard As more fully
discussed below, I find that the fact merely that a local
union official at the start of the strike expressed some
concern for potential union liability is insufficient
particularly on the facts of this case to preclude deferral
to the arbitrator's award Similarly, I find that the
absence of a transcript of the arbitration proceedings to be
an inadequate basis for withholding Board deferral, either
as a general matter or in the circumstances of this case
Finally, I find that the Respondent in any event has
adduced sufficient evidence on this record to vitiate any
suspicion of "unfairness" which the General Counsel's
contentions may suggest and that nothing further is
required
The Union's expression of concern for liability for the
breach-of-contract strike, I find, would be insufficient, in
the circumstances in which it occurred, to infer that the
Union had an interest adverse to Whirley so as to raise a
substantial question whether the Union adequately
represented Whitley in the arbitration. In this case the
contract (article III, section 1 and 2) specifically exempted
the Union from any liability for a breach-of-contract
strike when, as here, the Union did not "encourage,
Hide, unlike this case, the Board found, inter aim , that when the employer
was discussing the strikers' return to work it had made clear that the
employee whose discharge had caused the strike would not be taken back,
and at the time of these discussions the employer was fully aware that the
alleged discriminatee had instigated the walkout These circumstances may
well have contributed to the Board's finding that the absence of any other
reservation, such as disciplining the known instigator of the strike in
returning the employees to work, constituted condonation by the employer
Furthermore in this case, even assuming the arbitrator did not rely on
Robinson's testimony that he had stated at the meeting of May 14 that he
could make no promises regarding reprisals for the unlawful strike activity,
there is the arbitrator's finding that the Company had been "plagued" by a
number of walkouts and testimony that during negotiation of the current
contract the Employer had stated that employees would be disciplined for
future breaches of the no-strike provision
"See Denver-Chicago Trucking Company. Inc, 132 NLRB 1416,
Modern Motor Express, Inc , 149 NLRB 1507, compare Raytheon
Company. supra, Monsanto Chemical Company, 130 NLRB 1097
In view of all the foregoing reasons underlying my conclusions in this
aspect of the case, 1 did not find it necessary to rely on, nor did I consider
in reaching this result, the arbitrator's postarbitration letter stating that he
considered the question of condonation under the Act (Resp Exh 16
"International Harvester Company, supra
W. R. GRACE & CO.
sanction , or approve" the strike and actively sought to
"discourage and endeavor to prevent or terminate" such
strike." It was during the act of fulfilling this very
contract obligation at the start of the strike that a local
union officer remarked that the Union might suffer if the
employees did not return to work This remark, which
apparently was intended to bring about a cessation of the
strike, I find, in view of the Union's exemption from
liability under the contract did not reflect any real concern
by the Union. Furthermore, apart from finding this
evidence in itself to be insufficient as a basis for inferring
that the Union would not fully represent Whirley, the
record in this case, as discussed more fully infra, refutes
this suggestion.
Similarly, the argument that the lack of a transcript
precludes Board deferral to the arbitration award is
unpersuasive both as a general matter and in this case To
adopt the view that a transcript of an arbitration
proceeding is a sine qua non to Board deferral, as General
Counsel has suggested on this record, would impose an
unnecessary requirement on the parties and derogate from
the full encouragement of the private settlement of
disputes by adding a burdensome expense to the
agreed-upon method of settlement. This is a very real
consideration, as is demonstrated by the fact that in the
vast majority of arbitration proceedings no transcript is
made ' 6 Moreover, the Board has indicated in
Denver-Chicago Trucking, 132 NLRB at 1421, that it will
not "fix standards of formality in procedure on the part of
grievance and arbitration panels which must be met before
their awards could receive endorsement," stating "We
consider it enough under Spielberg if the procedures
adopted meet normal standards as to sufficiency, fairness,
and regularity. As to these, each case must rest on its own
bottoms." And, it does not appear that the Board has
considered the absence of a transcript, without more, as a
sufficient basis to abstain from the exercise of its policy of
"hospitable acceptance" to an arbitration award which
otherwise meets the Spielberg standards. Thus it appears
from a close reading of Modern Motor Express, Inc , 149
NLRB 1507, 1511, that, in Denver-Chicago, supra,
wherein the Board deferred to the decision of a bipartite
"Under this contract provision there is an additional requirement that
the International Union upon written notice from the Local Union or the
Employer, will notify the Local Union that the strike is unauthorized and
that the employees should cease the violation There is no suggestion in
this record that this requirement was invoked , or if invoked , that it was not
fulfilled
"See Arthur M Ross, The Well Aged Arbitration Case , 11 Industrial
and Labor Relations Review, p 262 ( 1958), in which it is pointed out that
from a survey conducted by the American Arbitration Association it was
learned that in only 22 7 percent of the cases reviewed was there a
transcript of the arbitration proceeding it was also noted that in the 22 7
percent of the cases where there was a transcript of the proceeding that the
average time from hearing to decision was 4 5 months - in the other 77 2
percent of the cases where there was no transcript the average time from
the hearing to decision was only 14 months In this case the contract
required that the arbitrator ' s decision issue within 30 days , which it did
"Trial Examiner Thomas Wilson, who presided at the trial in both cases,
after recounting the procedure followed in the Denver-Chicago case, noted
in his decision in Modern Motor ( at 1511), as regards the proceeding
before the bipartite board in that case (the Cleveland Committee ), that,
"On all matters of procedures the grievance machinery in the instant cases
was an exact counterpart of these in the Denver-Chicago case In fact the
Cleveland Committee had added one improvement in that it provided a
transcript of the proceedings " (Emphasis supplied )
505
board for the resolution of disputes under the governing
collective-bargaining agreement, there was no transcript of
the hearing before the bipartite board "
Finally where there is no transcript of the arbitration
proceeding and there is some evidence which purports to
derogate from a finding of essential fairness in the
proceeding, this itself may be litigated The ultimate
determination of whether deference is to be accorded the
arbitral award can be made on the basis of evidence
developed in the record of an unfair labor practice
proceeding. Such a hearing, as here, can serve to
illuminate whether there has been essential fairness in the
arbitration proceeding.
Based on the record in this case a refusal to defer to
the arbitral award for the lack of a transcript of the
proceeding would be unwarranted Respondent Company
established through witnesses called in this proceeding that
evidence was adduced under oath at the arbitration
hearing which would have fully developed what occurred
at the meeting during which the Company's conduct is
asserted to have constituted condonation. Thus, the
evidence in this record demonstrates that the parties were
provided the opportunity to present their conflicting views
of what occurred Respondent's witness Robinson stated
in this record that he had testified substantially the same
in this proceeding as he had at the arbitration hearing.
And it is uncontradicted that the alleged discriminatee was
represented by an International union representative, that
he was afforded the opportunity to call witnesses, and
indeed called 12 or 13 witnesses who testified at the
arbitration proceeding concerning the events which had
occurred, including the statement allegedly made by
Robinson that there would be no disciplinary action if the
employees returned to work This evidence, as well as the
arguments made to the arbitrator as reflected by his
opinion, adequately refutes any suggestion that Whirley
was not fairly represented by the Union and provides a
basis in this case for the conclusion that the arbitration
proceeding met the test of essential fairness required by
the Board for deferral to the arbitral award.
D Conclusion
Accordingly, I find that the Board should defer to the
decision of the arbitrator. It is thus unnecessary to decide
the substantive merits of the complaint"
CONCLUSIONS OF LAW
1. W. R. Grace & Co., Southbridge Plastics Division, is
an employer engaged in commerce within the meaning of
Section 2( 6) and (7) of the Act.
2 Local Union No. 759 and the International Union of
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, are now , and have been at all times
material herein , labor organizations within the meaning of
Section 2(5) of the Act.
3 The arbitration award upholding the discharge of
Loyd Whirley by the Respondent is entitled to deference
RECOMMENDED ORDER
It is hereby recommended that the complaint be
dismissed in its entirety.
"See Eazor Express. Inc, 172 NLRB No 201