Howard Industries, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 24, 2015

15-CA-131447 (N.L.R.B. Sep. 24, 2015)

JD(ATL)–19–15
Laurel, Mississippi
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
HOWARD INDUSTRIES, INC.
and Case 15-CA-131447
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
LOCAL UNION NO. 1317
Joseph Hoffman, Esq. and Kevin McClue, Esq.,
for the General Counsel
Elmer E. White, Esq. (The Kullman Law Firm),
of Birmingham, Alabama, for the Respondent
Mr. Clarence Larkin, for the Charging Party
BENCH DECISION AND CERTIFICATION
Statement of the Case
KELTNER W. LOCKE, Administrative Law Judge: I heard this case on September 9,
2015 in Laurel, Mississippi. After the parties rested, I heard oral argument, and, on September
10, 2015, issued a bench decision pursuant to Section 102.35(a)(10) of the Board's Rules and
Regulations, setting forth findings of fact and conclusions of law. In accordance with Section
102.45 of the Rules and Regulations, I certify the accuracy of, and attach hereto as "Appendix
A," the portion of the transcript containing this decision.1 The Conclusions of Law and Order
provisions are set forth below.
CONCLUSIONS OF LAW
1. The Respondent, Howard Industries, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, International Brotherhood of Electrical Workers, Local
Union No. 1317, is a labor organization within the meaning of Section 2(5) of the Act.

1 The bench decision appears in uncorrected form at pages 149 through 165 of the transcript. The final
version, after correction of oral and transcriptional errors, is attached as Appendix A to this Certification.
JD(ATL)–19–15
2
3. At all times since about 1970, the Charging Party has been the exclusive
bargaining representative, within the meaning of Section 9(a) of the Act, of the following unit
of employees at the Respondent's Laurel, Mississippi facility: All full-time and regular part-
time production and maintenance employees, EXCLUDING all other employees, guards, and 5
supervisors as defined in the Act. This unit is an appropriate unit for collective bargaining
within the meaning of Section 9(b) of the Act.
4. The Respondent and the Charging Party were parties to a collective-bargaining
agreement covering the employees in the unit described above. This collective-bargaining 10
agreement was effective from January 21, 2012 to January 20, 2015. This agreement
establishes grievance resolution procedures culminating in binding arbitration.
5. At all material times, Gregory Jones has been an employee in the bargaining unit
described above.15
6. On or about June 12, 2014, the Respondent suspended Gregory Jones, and
discharged him on about June 19, 2014.
7. To contest the suspension and discharge of Gregory Jones, described in 20
paragraph 6, above, the Charging Party filed the unfair labor practice charge in this case and
also filed a grievance, the latter resulting in a hearing before Arbitrator Cary J. Williams on
November 21, 2014. On January 6, 2015, the arbitrator issued an opinion and award denying
the grievance and sustaining the suspension and discharge of Jones.
25
8. Respondent and the Charging Party had agreed to be bound by the arbitrator's
decision described in paragraph 6 above, the procedures resulting in the decision were fair and
regular, and the arbitrator considered the unfair labor practice issue.
9. The arbitrator's decision described in paragraph 6, above, is not repugnant to the 30
Act.
10. It is appropriate to defer the present Complaint to the arbitrator's decision.
11. Further proceedings are unwarranted.35
On the findings of fact and conclusions of law herein, and on the entire record in this
case, I issue the following recommended2
40

2 If no exceptions are filed as provided by Section 102.46 of the Board's Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed waived for all purposes.
The Complaint is dismissed.
Dated, Washington, D.C.5
10
JD(ATL)–19–15
3
ORDER
September 24, 2015
JD(ATL)–19–15
4
APPENDIX A
Bench Decision
This decision is issued pursuant to Section 102.35(a)(10) and Section 102.45 of the
Board's Rules and Regulations. Finding that an arbitrator already has ruled on a grievance
factually parallel to the circumstances under consideration here, and concluding that the
arbitrator's decision meets the relevant Board standards for deferral, I recommend that the
Board defer to that decision and dismiss the Complaint.
Procedural History
This case began on June 24, 2014, when the Charging Party, International Brotherhood
of Electrical Workers, Local Union No. 1317, filed an unfair labor practice charge against the
Respondent, Howard Industries, Inc., with Region 15 of the National Labor Relations Board.
The Region docketed this charge as Case 15–CA–131447 and served it on the Respondent by
regular mail the next day. The Charging Party amended this charge on August 18, 2014 and
again on August 22, 2014.
The charge alleged that the Respondent had violated the Act by discharging an
employee, Gregory Jones, who was the Union's chief shop steward. After an investigation, the
Region deferred further proceedings to the grievance-arbitration process specified in the
collective-bargaining agreement which the Union and Respondent had negotiated. On
November 21, 2014, the Union and Respondent participated in a hearing before Arbitrator Cary
J. Williams. On February 6, 2015, the arbitrator issued an opinion and award denying the
grievance and sustaining Respondent's discharge of Jones.
Thereafter, the Regional Director for Region 15 rescinded the deferral to arbitration.
On May 28, 2015, the Regional Director issued a Complaint and Notice of Hearing. On July
14, 2015, the Regional Director issued a Compliance Specification and Order Consolidating
Complaint and Compliance Specification and Notice of Hearing. Respondent filed timely
answers to these pleadings.
On September 9, 2015, a hearing opened before me in Laurel, Mississippi. During the
hearing, the General Counsel further amended the Complaint to allege that certain named
individuals were Respondent's supervisors and/or agents, but this amendment did not add any
new unfair labor practice allegations. The General Counsel also amended the Compliance
Specification.
Both the General Counsel and the Respondent called and examined witnesses and
offered documentary exhibits. After a recess, counsel presented oral argument. All parties had
the opportunity to call and examine witnesses and offer documentary evidence for inclusion in
the record. After counsel presented oral argument, I recessed the hearing to prepare this bench
decision.
JD(ATL)–19–15
5
Today, September 10, 2015, I am issuing this bench decision.
Admitted Allegations
Based on the admissions in Respondent's Answer and stipulations during the hearing, I
find that the General Counsel has proven the allegations raised in Complaint paragraphs 2(a),
2(b), 3, 4, 5, 6(a), 6(b), 6(c), 7, and 8(a). More specifically, I find that the Respondent has an
office and place of business in Laurel, Mississippi, where it is engaged in the manufacture and
nonretail sale of electrical transformers. Further, I find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act and that
assertion of jurisdiction in this matter is appropriate.
Additionally, I find that Vice President of Human Resources Loren Koski and
Supervisor Charles Smith are supervisors and agents of Respondent within the meaning of
Sections 2(11) and 2(13) of the Act, respectively.
Based on the admissions in Respondent's Answer, I also find that the Charging Party,
International Brotherhood of Electrical Workers, Local Union No. 1317, is a labor organization
within the meaning of Section 2(5) of the Act. Further, I find that at all times since about 1970,
the Union has been and is the exclusive bargaining representative, within the meaning of
Section 9(a) of the Act, of the following unit of employees at Respondent's Laurel, Mississippi
facility:
Included: All full-time and regular part-time production and maintenance
employees.
Excluded: All other employees, guards, and supervisors as defined by the
Act.
Additionally, I find that this unit is an appropriate unit within the meaning of Section
9(b) of the Act. Since about 1970, the Respondent has recognized the Union as the exclusive
collective-bargaining representative of employees in this unit, and such recognition has been
embodied in successive collective-bargaining agreements, the most recent of which was
effective from January 21, 2012 to January 20, 2015. At all times material to this case, the
Respondent and the Union have maintained and enforced this agreement, which covers wages,
hours and other terms and conditions of employment of the bargaining unit employees.
Based on the admissions in Respondent's Answer, I also find that about June 10, 2014,
Respondent's employee Gregory Jones, chief Union steward at Respondent's facility,
complained that the Respondent was requiring employees to work mandatory double overtime
without proper notice, in contravention of the collective-bargaining agreement. Further, I find
that about June 12, 2014, the Respondent suspended Jones and that on about June 19, 2014, the
Respondent discharged Jones.
In its Answer, the Respondent denied the allegations raised in Complaint paragraphs
1(a), 1(b) and 1(c) concerning the filing and service of the charge and amended charges in this
case, on the basis that it had insufficient information to determine the accuracy of those
JD(ATL)–19–15
6
allegations. The charges and certificates of service are in the record. Based on that evidence,
noting the absence of contradictory evidence and the presumption of administrative regularity, I
find that the charges were filed and served as alleged.
The Deferral Issue
The Complaint alleges only two actions to be unfair labor practices. These are the
Respondent's suspension of Jones on June 12, 2014 and the discharge of Jones on June 19,
2014. Although Respondent admits taking these actions, it denies the alleged unlawful
motivation which is an element of a Section 8(a)(3) violation. The Respondent argues that the
Board should defer to the February 6, 2015 decision of Arbitrator Williams, which has been
introduced into evidence. The General Counsel opposes such deferral.
Arbitrator Williams' decision notes that, in addition to the Union's grievance concerning
Jones' discharge, the Union
also filed an unfair labor practice charge with the National Labor Relations Board,
Region 15, on June 24, 2014, and amended that charge on August 18, 2014 and
August 22, 2014. The Board deferred the August 22, 2014 amended charge to
arbitration to resolve the underlying dispute and a hearing was held in Laurel,
Mississippi on November 21, 2014. During the hearing, the parties were afforded
the opportunity to present testimony and evidence and no issues were raised
regarding timeliness or arbitrability. The arbitrator received post-hearing briefs
on January 12, 2014.
With the exception of the Board's compliance officer, who gave testimony concerning
backpay issues during the unfair labor practice hearing, the same witnesses testified both before
me and before Arbitrator Williams. These witnesses were the discharged employee, Gregory
Jones, the Union's president and business manager, Clarence Larkin, the Respondent's vice
president of human resources, Loren Koski, and another human resources representative,
Bailey James. Additionally, a supervisor, Charles Smith, testified before Arbitrator Williams
but did not testify in the unfair labor practice hearing.
The arbitrator's decision, describing the issues raised by each side, included the
following: "The Union contends the Company discriminated against Grievant and ultimately
suspended and discharged him for his union activities as chief steward."
From the arbitrator's decision it is clear, and I find, that the arbitrator considered the
unfair labor practice allegations. Thus, the arbitrator's decision states as follows:
The evidence and testimony was insufficient to prove that the Company
discriminated against Grievant for his union activities as Chief Steward when it
suspended and discharged him in June 2014. The Company presented
documentary evidence of numerous other employees that were disciplined for
violating Rules 35 and 36 when they failed to perform an overtime assignment
and left work without authorization . . . The evidence therefore did not prove
JD(ATL)–19–15
7
Grievant was discriminated against or singled out for punishment in this case.
As further evidence of discrimination by the Company, the Union
presented evidence concerning a grievance filed by Grievant against supervisor
Gable. In that case Grievant's discipline was eventually overturned by
Arbitrator Bain . . . While Arbitrator Bain's decision did in fact sustain this
grievance, the facts therein were not sufficient to prove the Company had any
specific animus against Grievant as Chief Steward or as an employee generally.
That case did involve both Koski and Bailey who were the decision-makers
regarding discipline but there was no evidence they had any ill feelings against
Grievant or were "out to get" him either in that instance or in the present case.
In addition, the Union presented testimony from Grievant that supervisor
Smith was angry at him for filing a grievance on June 10, 2014 based on the
June 6th incident regarding the 12 hour rule . . . and that this was additional
evidence to support its contention that the Company discriminated against
Grievant by discharging him. While the testimony did show that Grievant and
Smith had a discussion on June 10, 2014 regarding the grievance filed that day,
this evidence did not prove it was the basis for Grievant's subsequent discipline.
There was not enough evidence to establish that Smith was engaged to an extent
that he sought discipline for Grievant because of the grievance he had filed or
that he discriminated against Grievant for this action. To the contrary, the
evidence proved that Grievant violated Plant Rules by leaving without
permission and failing to complete his overtime assignment. Grievant was
disciplined for the violations, not any argument he might have had with Smith
over filing a grievance.
Based upon this quoted portion of the arbitrator's decision, I conclude that the arbitrator
did consider the allegations that the suspension and discharge of Jones constituted unfair labor
practices. For reasons I will discuss later in this decision, I find that the arbitrator sufficiently
weighed the evidence and then rejected those allegations.
Legal Analysis
To determine whether it is appropriate to defer to the arbitrator's decision, I first must
determine what legal framework and criteria to apply. In Babcock & Wilcox Construction Co.,
361 NLRB No. 132 (2014), the Board adopted new standards for deciding when it would defer
to an arbitrator's decision. These new standards begin with two threshold questions familiar
from the old criteria; namely, whether the arbitration proceeding was fair and regular and
whether the parties had agreed to be bound.
No one has challenged the fairness and regularity of the proceeding before Arbitrator
Williams. The record in the present proceeding, including the arbitrator's 14-page decision,
convince me that the proceeding was fair and regular. I so find.
JD(ATL)–19–15
8
Similarly, there is no doubt that the parties agreed to be bound. At the time that
Respondent suspended and discharged Jones, and when the Respondent and Union appeared
before Arbitrator Williams on November 21, 2011, they were parties to and bound by a
collective-bargaining agreement which was effective by its terms from January 21, 2012 to
midnight, January 20, 2015. In submitting the matter to Arbitrator Williams, they were
following the grievance-arbitration procedure set forth in that agreement. Therefore, I find that
the parties had agreed to be bound.
The third prong of the Babcock & Wilcox framework consists of three questions, all of
which must be answered in the affirmative to satisfy the requirements for deferral. The party
urging deferral must show that (1) the arbitrator was explicitly authorized to decide the unfair
labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or
was prevented from doing so by the party opposing deferral; and (3) Board law reasonably
permits the award.
With respect to the second question, I conclude that the arbitrator was presented with
and considered the statutory issue. In Babcock & Wilcox, the Board stressed "that an arbitrator
will not be required to have engaged in a detailed exegesis of Board law in order to meet this
standard."
Although the arbitrator's decision did not include a discussion of Board case precedent,
it did refer to the unfair labor practice issues and engaged in an analysis of the facts related to
those issues. Therefore, I conclude that the arbitrator's decision sufficiently satisfies the second
of the three criteria.
However, I cannot conclude that the arbitral process satisfied the first criterion, which
requires an explicit authorization for the arbitrator to decide the unfair practice issue. Based on
the testimony of the Respondent's Vice President Koski, I find that the parties did not explicitly
authorize the arbitrator to decide the statutory issue. At the time of the arbitration, the Board
had not yet issued its Babcock & Wilcox decision.
Now, I turn to the question of whether the Babcock & Wilcox standards should be
applied here. In Babcock & Wilcox the Board noted that when one of its decisions sets a new
standard, it customarily applies that standard retroactively to cases then pending, but stated that
in this instance, "concerns supporting retroactive application are outweighed by the injustice
that would result from applying the new standard in pending cases. Accordingly, we will apply
the new standard only prospectively." The Board further stated:
[W]here parties have already, either contractually or explicitly for a particular
case or cases, authorized arbitrators to decide unfair labor practice claims, we
shall apply the new standard to all future arbitrations. By contrast, where current
contracts do not authorize arbitrators to decide unfair labor practice issues, we
will not apply the new standards until those contracts have expired, or the parties
have agreed to present particular statutory issues to the arbitrator.
Babcock & Wilcox, 361 NLRB No. 132, slip op. at 14.
JD(ATL)–19–15
9
The collective-bargaining agreement which included the grievance arbitration procedure
was effective from January 21, 2012 to January 20, 2015 and during this period, the Union filed
the grievance leading to arbitration. Also during this period, the parties presented this case to
the arbitrator. Specifically, they did so during a hearing on November 21, 2014. Based on
these dates, I conclude that the Board's previous arbitration deferral policy applies, and not the
new policy established in Babcock & Wilcox.
It is true that the arbitrator's decision did not issue until after the collective-bargaining
agreement expired, but it still arose under and was authorized by the 2012 to 2015 collective-
bargaining agreement. Therefore, concluding that the Babcock & Wilcox framework does not
apply, I will evaluate deferral under the previous standards.
Under the former standards, the Board would defer to an arbitration award when the
arbitration proceedings appeared to have been fair and regular, all parties had agreed to be
bound, the arbitrator adequately considered the unfair labor practice issue that the Board was
called on to decide, and the decision of the arbitrator is not clearly repugnant to the purposes
and policies of the Act. See Shands Jacksonville Medical Center, Inc., 359 NLRB No. 104
(April 26, 2013), citing Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955). and Raytheon Co.,
140 NLRB 883, 884–885 (1963).
For reasons already discussed, I have concluded that the arbitration proceeding was fair
and regular and that all parties had agreed to be bound. Further, based on the rather extensive
discussion in the arbitrator's decision, I conclude that the arbitrator adequately considered the
unfair labor practice issues which the Board is called upon to decide.
The General Counsel argues that Arbitrator Williams did not consider an element of the
unfair labor practice case, namely, the government's argument that Jones' walking off the job
constituted protected activity because it was to enforce a right under the collective-bargaining
agreement. Stated another way, the arbitrator did not address the principle, relied on by the
General Counsel, that the Act protects activity by one employee to enforce a collectively
bargained right. Interboro Contractors, Inc., 157 NLRB 1295 (1966).
However, under the Board's former standard, being applied here, an arbitrator need not
address the General Counsel's theory of the case with such specificity. In Olin Corp., 268
NLRB 573, 574 (1984), the Board held that an arbitrator had adequately considered the unfair
labor practice if (1) the contractual issue was factually parallel to the unfair labor practice issue,
and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair
labor practice. In the present case, both requirements clearly have been met.
Both the grievance considered by Arbitrator Williams and the Complaint before me
concern the Respondent's discharge of Jones. The arbitrator also discussed Respondent's
suspension of Jones before his discharge. Moreover, as already discussed, the arbitrator's
decision specifically addressed the unfair labor practice charge and the arbitrator clearly
rejected the argument that the suspension and discharge of Jones constituted unfair labor
practices. Therefore, I conclude that the issues before the arbitrator were factually parallel to
JD(ATL)–19–15
10
those in this proceeding. See Motor Convoy, 303 NLRB 135 (1991).
Now, I must determine whether or not the arbitrator's decision was clearly repugnant to
the Act. Under its previous standards, the Board would determine whether a particular award
was "clearly repugnant to the Act" by reviewing all the circumstances, including the contractual
language, evidence of bargaining history and past practice presented in the case. Southern
California Edison Co., 310 NLRB 1229 (1993).
As already noted, the General Counsel has cited Board precedent for the proposition
that when Jones walked off the job, he was engaged in activity protected by the Act. Similarly,
the General Counsel has argued that this one instance did not constitute an unprotected
intermittent work stoppage. The General Counsel also argued that the no-strike clause in the
collective-bargaining agreement did not render Jones' action unprotected. Thus, the
government contends that the arbitrator's decision was clearly repugnant to the Act.
Under the previous standards, The Board would find deferral inappropriate under the
clearly repugnant standard only when an arbitrator's award was "'palpably wrong,' i.e. . . . is not
susceptible to an interpretation consistent with the Act." The party seeking to have the Board
reject deferral bore the burden of proof. Motor Convoy,, 303 NLRB 135 (1991).
The Board stated in Kvaerner Philadelphia Shipyard Inc., 346 NLRB 390 (2006), that if
"Board precedent exists that supports an arbitrator's decision, it cannot be said that the decision
falls outside the broad parameters of the Act. Thus, such a decision is not palpably wrong or
clearly repugnant to the Act, even if other Board precedent is arguably contrary to the arbitral
decision. See Marty Gutmacher, Inc., 267 NLRB 528–533 (1983)."
In Mobil Oil Exploration & Producing, U.S., 325 NLRB 176 (1997), the Board held
that an arbitrator's decision, upholding a discharge, was palpably wrong because the reason for
the discharge was the employee's protected activity. In the present case, the General Counsel
argues that the reason for the discharge was activity which itself was protected; specifically,
Jones' walking off the job to assert a right under the collective-bargaining agreement.
Whether that activity was, in fact, protected, depends on the scope of the no-strike
clause in the collective-bargaining agreement. The General Counsel offers an interpretation of
the no-strike clause language which would make the language inapplicable to Jones' walkout.
Specifically, the General Counsel argues that the prohibition on strikes is limited to those
"designed to curtail or interfere with production" and that Jones' walkout was not designed with
that intention.
However, an arbitrator is particularly competent and empowered to interpret the
language of a collective-bargaining agreement. Here, the arbitrator's decision quoted this no-
strike language in the "Pertinent Contract Provisions" of his decision.
Additionally, the arbitrator considered the plant rules which the Respondent had
established, pursuant to the collective-bargaining agreement's management rights clause, and
determined that Jones had violated the rules in a manner which justified his discharge.
JD(ATL)–19–15
11
Therefore, I conclude that the arbitrator's decision is susceptible to a construction which is
consistent with the Act.
In these circumstances, I conclude that the arbitrator's decision was not "palpably
wrong," as that term of art is used in Board law, and that it was not clearly repugnant to the
Act.
In sum, I conclude that the arbitration proceeding in this case satisfied the Board's
previous standards, which control here because the Board decided in Babcock & Wilcox to
apply its new standards prospectively. Therefore, I further conclude that the Board should
defer to the February 6, 2015 decision of Arbitrator Williams.
Accordingly, I recommend that the Board dismiss the unfair labor practice Complaint in
the present case. In view of that dismissal, the issues raised by the Compliance Specification
are moot.
When the transcript of this proceeding has been prepared, I will issue a Certification
which attaches as an appendix the portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Findings of Fact, Conclusions of Law,
and Order. When that Certification is served upon the parties, the time period for filing an
appeal will begin to run. Throughout this proceeding, all counsel demonstrated the highest
degree of civility and professionalism, which I truly appreciate.
The hearing is closed.