Chemical Leaman Tank Lines

National Labor Relations Board - Board Decisions

Jun 15, 1984

270 N.L.R.B. 1219 (N.L.R.B. 1984)

CHEMICAL LEAMAN TANK LINES
Chemical Leaman Tank Lines, Inc. and Carl Edge-
field. Case 15-CA-8609
15 June 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 5 August 1983 Administrative Law Judge
James L. Rose issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed cross-exceptions
with a supporting brief as well as a brief in opposi-
tion to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and, for
the reason stated below, has decided to affirm the
judge's rulings, findings,' and conclusions and to
adopt the recommended Order.
The General Counsel alleges that the Respond-
ent violated Section 8(a)(1) and (3) of the Act by
threatening to discharge, and thereafter discharg-
ing, employee Carl' Edgefield for filing grievances
against it. The Respondent, on the other hand,
claims that Edgefield was lawfully discharged for
striking his supervisor, Joseph Fox, and further
argues that the Board should defer to a decision of
the Southern Tank Line Grievance Committee2
which upheld the discharge. In his decision the
judge agreed with the Respondent that the Board
should defer to the Committee's decision. The
General Counsel contends that deferral to the
Committee's decision would be inappropriate as the
unfair labor practice issue was presumably neither
presented to nor decided by the Committee. We
find no merit to the General Counsel's contention;
rather, we agree with the judge that deferral to the
Committee's decision is appropriate here.
Recently, in Olin Corp., 268 NLRB 573 (1984),
the Board held that in determining whether or not
to defer to an arbitrator's award under Spielberg
Mfg. Co., 112 NLRB 1080 (1955), it would hence-
forth view the unfair labor practice issue before the
Board as having been adequately considered by an
arbitrator if (1) the contractual issue is factually
' The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
I The Committee is composed of an equal number of employer and
union representatives.
270 NLRB No. 183
parallel to the unfair labor practice issue and (2)
the arbitrator was presented generally with the
facts relevant to resolving the unfair labor practice.
The Board further held that, if a respondent can
show that an arbitration concerning the matter
before the Board has already occurred, then the
burden would be on the General Counsel to dem-
onstrate that "there are deficiencies in the arbitral
process requiring the Board to ignore the determi-
nation of the arbitrator and subject the case to de
novo review."
The contractual issue before the Committee and
the statutory issue before us are, as found by the
judge, factually parallel. At the hearing before the
Committee the Respondent claimed it discharged
Edgefield for hitting his supervisor, Fox, in the
stomach. Edgefield denied having hit Fox and
claimed that Fox harassed and finally discharged
him for filing numerous grievances against the Re-
spondent.
In the unfair labor practice proceeding the Gen-
eral Counsel alleged that the Respondent dis-
charged Edgefield for filing grievances, and the
Respondent contended it discharged him for hitting
his supervisor. The factual question that the Board
would have to decide, if it were to rule on the
merits of the statutory issue, is whether Edgefield
was discharged for filing grievances or for hitting
his supervisor. Resolution by the Committee of the
contractual issue would, of necessity, require it to
resolve this very issue. As indicated, the Commit-
tee upheld Edgefield's discharge and, in doing so,
in effect, held that Edgefield had hit Fox and that
this misconduct warranted his discharge.
Further, it is apparent from the record evidence
that the facts relevant to resolving the unfair labor
practice issue were fully presented to the Commit-
tee. During the hearing in this case Edgefield testi-
fied that all the facts presented to the judge during
the hearing concerning his claim that he was dis-
criminated against for filing grievances had been
presented to the Committee. In light of his admis-
sion we conclude that the facts necessary for de-
ciding the statutory issue were indeed before the
Committee.
Having found that the contractual and statutory
issues are factually parallel and that the Committee
was presented generally with the facts relevant to
resolving the statutory issue, we conclude that the
statutory issue has, in accordance with the Olin
standards, been adequately considered by the Com-
mittee.3 We note further that the General Counsel
s Having found that the Committee has adequately considered the
unfair labor practice issue in accordance with the Olin standards, we dis-
avow the judge's comment that "it does not appear that the Committee
Continued
1219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has neither alleged nor presented any evidence to
indicate any deficiencies in the Committee's pro-
ceedings that would warrant a de novo review by
this Board. 4 For these reasons we conclude that
deferral to the Committee's decision is warranted
here. 6 Accordingly, we shall adopt the judge's rec-
ommended Order and shall dismiss the complaint
in its entirety.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER ZIMMERMAN, concurring.
For the reasons stated in my dissenting opinion
in Olin Corp., 268 NLRB 573 (1984), I cannot
agree with my colleagues that deferral to the
Grievance Committee's decision is appropriate
here.
In the instant case the judge, although recom-
mending that the Board defer to the Committee's
findings, nevertheless stated that, based on the tes-
timony of those present at the grievance hearing,
"it does not appear that the statutory question was
considered or decided by the Committee." Thus,
although the Committee may have found that the
Respondent had just cause under the contract to
discharge Edgefield for hitting Fox, it did not, as
noted by the judge, consider "the issue of whether
the sole or even a partial motive behind the dis-
charge of Edgefield was his having engaged in pro-
tected activity." A plain reading of the Commit-
tee's decision clearly supports the judge's finding in
this regard, for, aside from some vague reference
to Fox's alleged harassment of Edgefield and the
Committee's court denial, without explanation, of
Edefield's grievance, there is nothing in that deci-
sion remotely to suggest that the unfair labor prac-
tice issue was either presented to or considered by
the Committee. In the absence of such evidence I
would not defer to the Committee's decision here.2
I do, however, agree with the judge's finding
that Edgefield's discharge did not violate Section
8(a)(1) and (3) of the Act. Crediting the testimony
of Fox,3 the judge found that Edgefield indeed
struck Fox and that Fox had not threatened to
considered the issue of whether the sole or even a partial motive behind
the discharge of Edgefield was his having engaged in protected activity."
Because the Committee did hear the facts on the issue, its decision effec-
tively, although not explicitly, did decide the issue.
4Thus, the General Counsel has not alleged that the Committee's deci-
sion fails to meet the other Olin criteria. The General Counsel contends
only that the Committee did not consider the statutory issue. As found
herein, that contention is without merit.
a In view of our decision to defer to the Committee's findings, we
deem it unnecessary to rule, as did the judge, on the merits of the unfair
labor practice allegation.
"get" Edgefield for filing grievances. Noting that
there was no credible evidence to suggest "a casual
[sic] connection between Edgefield's grievances
and discharge," the judge concluded that Edgefield
was lawfully discharged for hitting Fox. The
record fully supports these findings. Accordingly,
on the merits, and on that basis alone, I join my
colleagues in dismissing the complaint.
Although the judge's decision issued before the Board adopted its
new standard in Olin Corp., he nevertheless applied an Olin-type standard
to conclude that deferral was appropriate. As indicated, I do not agree
with the standard adopted by the Board in Olin and similarly find the
judge's standard unacceptable.
I As noted in my dissenting opinion in Olin, the burden of producing
such evidence properly belongs on the party seeking deferral and not, as
my colleagues insist, on the General Counsel.
S Like my colleagues I find no basis for reversing the judge's credibil-
ity findings.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This
matter was tried before me on March 10 and 11 and June
1, 1983, on the General Counsel's complaint which al-
leged principally that on May 3, 1982, the Respondent
discharged Carl Edgefield in violation of Section 8(aXl)
and (3) of the National Labor Relations Act. It is also
alleged that in mid-April and again on April 30, 1982,
the Respondent threatened Edgefield with termination
for filing grievances against the Respondent.
The Respondent generally denied having committed
any unfair labor practices and affirmatively contends that
it discharged Edgefield because "he physically acosted
Joseph C. Fox [the Respondent's terminal manager] by
striking him in the chest on April 30, 1982 .. ."
On the record as a whole, including my observation of
the witnesses, briefs and arguments of counsel, I hereby
make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is a corporation licensed to do busi-
ness in the State of Louisiana, and is engaged nationally
in the transportation of liquid and dry bulk products by
tank truck from terminals maintained throughout the
United States and Canada. The terminal where Edgefield
was employed is located in Luling, Louisiana. The Re-
spondent annually derives revenues in excess of $50,000
from transporting liquid and dry bulk products through
out the United States and Canada. The Responaent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Truckdrivers, Chauffeurs, Warehousemen and
Helpers Union No. 270, affiliated with the International
1220
CHEMICAL LEAMAN TANK LINES
Brotherhood of Teamsters, Chauffeurs and Warehouse-
men and Helpers of America (the Union) is admitted to
be, and I find is, a labor organization within the meaning
of Section 2(5) of the Act.
Among others, the Union represents a unit of truck-
drivers employed by the Respondent at the Luling, Lou-
isiana terminal and has negotiated successive collective-
bargaining agreements with the Respondent. The Re-
spondent and the Union are now and have been parties
to the Master Tank Line Agreement.
1II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Carl Edgefield was hired by the Respondent on No-
vember 10, 1979, and terminated in December, the exact
date being a matter of dispute which was resolved in
favor of Edgefield by decision of the Southern Confer-
ence Tankline Grievance Committee on January 16,
1980. This Committee ordered that Edgefield be reinstat-
ed with his original seniority date but that his monetary
claim be denied.
Edgefield was again discharged on April 26, 1980, for
alleged dishonesty. Again Edgefield filed a grievance
which was resolved in his favor by the Southern Confer-
ence Tank Line Grievance Committee on May 6, 1980.
He was ordered reinstated the full seniority and backpay.
Both before and after his second return to work, Ed-
gefield filed numerous other grievances under the collec-
tive-bargaining agreement alleging a variety of violations
of contract by Joseph Fox, the Respondent's terminal
manager at Luling. Edgefield contended that Fox was
harassing him and discriminating against him by giving
assignments to junior drivers, denying him appropriate
pay and so forth. The grievances, according to the stipu-
lated exhibits in this matter, were numerous. As Edge-
field testified, and as the Respondent agreed, Edgefield
won some and he lost some.
As a result of lack of work and his relatively low se-
niority, throughout much of 1981 and the first months of
1982, Edgefield was on layoff. However, work improved
and in mid-April Edgefield was recalled. On his recall he
forthwith began filing grievances alleging various
breaches of the contract by Fox. It was at this time Fox
allegedly told Edgefield, "I'm going to fire you. I'm defi-
nitely going to get you." Edgefield testified that Fox
threatened to fire him many times.
Edgefield returned from assignment on April 29 and
on the morning of April 30 went to the terminal. Al-
though the parties somewhat disagree concerning what
transpired on the trip, and the resulting dispute was be-
tween Edgefield and Fox, there is no question that Edge-
field and Fox had a confrontation on April 30.
What this case is about is whether Edgefield hit Fox in
the stomach during the confrontation. Fox testified that
Edgefield hit him that day and other witnesses testified
Fox told them so and showed a bruise. Edgefield claims
that he did not even touch, much less hit, Fox. Edge-
field's wife was present part of the time and she testified
that, during her presence, she did not see any hitting.
In any event, Fox contacted higher supervision and it
was determined to discharge Edgefield for having as-
saulted Fox. A termination letter was sent on May 3 and
received in the Union's office on May 4. Edgefield filed
a grievance protesting his termination and the matter was
presented to the Southern Conference Tank Line Griev-
ance Committee on June 9, 1982. In its decision, the
Committee recited the facts leading to and the confronta-
tion between Edgefield and Fox. The Committee also
noted that "the grievant felt he had been continually har-
assed" by Fox and that he had not, as Fox testified, hit
him. The decision of the Committee was: "Based upon
the facts presented, the grievance is denied."
B. Analysis and Concluding Findings
1. Deferral to the Grievance Committee decision
The Respondent contends the Board should defer to
the decision of the Committee citing Spielberg Mfg. Co.,
112 NLRB 1080 (1955).
The General Counsel argues that deferral here is inap-
propriate inasmuch as the unfair labor practice issue was
neither presented to nor decided by the Grievance Com-
mittee, citing Suburban Motor Freight, 247 NLRB 146
(1980) and Professional Window Cleaning Co., 263 NLRB
136 (1982).
Although Edgefield and the Union did present to the
Committee their contention that Fox had been harassing
Edgefield because Edgefield had filed many grievances,
it does not appear that the Committee considered the
issue of whether the sole or even a partial motive behind
the discharge of Edgefield was his having engaged in
protected activity. As far as I am able to determine from
the testimony of those present at the grievance hearing
(particularly the Union's business agent Eugene Brown)
and the Committee's written decision it does not appear
that the statutory question was considered or decided by
the Committee.
On the other hand, all the facts necessary to decide
the statutory issue were presented. Nothing was withheld
from the Committee. It is obvious that the Committee
decided that Edgefield hit Fox. Further, it is clear that
the Committee concluded that for an employee to strike
a supervisor is just cause for discharge under the con-
tract, there being no suggestion there, or here, that such
activity had been condoned in the past.
In effect, the General Counsel argues that, since it is
unclear whether the Committee decided the statutory
issue, deferral is inappropriate. Further, I can, and
should, find that Edgefield did not hit Fox.
The only material fact in controversy was decided by
the Committee against Edgefield. Even though the Com-
mittee did not analyze the statutory question, the issue
here is whether that factfinding should be accepted or
whether the General Counsel (and Edgefield) can reliti-
gate it. I conclude deferral is appropriate. The statutory
and contractual questions are parallel. The factual find-
ing by the Committee is dispositive of the unfair labor
practice allegation and is consistent with the record
before me. There is no evidence of disparate treatment
or that striking a supervisor had been condoned in the
past.
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under current Board policy, deferral to an arbitrator's
ultimate decision that a discharge is for cause is not ap-
propriate unless the arbitrator considered the unfair labor
practice question. This is so because the contact and stat-
utory issues are different requiring different consider-
ations and analysis. E.g., Raytheon Co., 140 NLRB 883
(1963); Suburban Motor Freight, supra; Professional
Window Cleaning Co., supra.
However, notwithstanding whether the statutory ques-
tion was analyzed and decided, the Board will defer to
the arbitrator's factual findings, if the proceeding meets
the Spielberg tests. Atlantic Steel Co., 245 NLRB 814
(1979).
In Atlantic Steel, during the course of presenting a
grievance, the discharged employee called his supervisor
an opprobrious name. The Board deferred to the arbitra-
tor's decision that the discharge was for just cause even
though the arbitrator did not decide the unfair labor
practice issue (whether the true motive for the discharge
was presenting a grievance.) Said the Board at 814 fn. 2:
[T]here is a factual parallel between the contractual
and unfair labor practice questions which makes the
arbitrator's factual findings controlling for purposes
of resolving the unfair labor practice. Indeed, the
arbitrator's decision implicitly resolved the unfair
labor practice.
Thus where the arbitration proceeding is fair, com-
plete, and comprehensive, the Board will defer to the ar-
bitrator's factfindings, even though the statutory issue
was not resolved. Chemical Leaman Tank Lines, 251
NLRB 1058 (1980). Not to defer in a case such as this
would be to substitute
. . . the Board's judgment for that of arbitrator,
thereby defeating the purposes of the Act and the
common goal of national labor policy of encourag-
ing the final adjustment of disputes, "as part and
partial of the collective-bargaining process." Inter-
national Harvester Co., 138 NLRB 923, 929 (1962).
The contractual issue turned on a disputed issue of fact
which the Committee resolved in favor of the Respond-
ent and against Edgefield. The Committee found Edge-
field hit Fox. I believe that finding should be accepted
by the Board, there being no contention that the griev-
ance proceeding was not fair and complete.
2. Edgefield's discharge was not violative of the
Act
Striking a supervisor is clearly the sort of activity for
which one can lawfully be discharged. The fact that Ed-
gefield filed many grievances in the past is not sufficient
to support a conclusion that hitting Fox was not the true
reason he was discharged. There is no evidence of dis-
parate treatment that any other employee, having struck
a supervisor, received lesser or no punishment. Edgefield
did hit Fox during another confrontation at the time of
his layoff in June 1981. Since Edgefield had been laid
off, it was determined simply to note this event in his
personnel filed.
The only evidence linking Edgefield's many griev-
ances to his discharge is his testimony that following his
return to work in 1980 he filed a grievance and Fox told
him that "you're up to the same old shit." And when
Edgefield told Fox on April 30, 1982, that he intended to
file a grievance concerning the 9-1/2 hours of pay, Fox
said it would do him no good and that "he would get
me." Fox denied having made such statements.
While I doubt such statements are sufficient to vitiate
a discharge for hitting a supervisor, I conclude they did
not occur.
On all the facts, and my observation of witnesses, I am
constrained to discredit Edgefield and credit Fox. It may
very well be that they had discussion and no doubt they
did have confrontations during the course of Edgefield's
employment. Indeed, Fox had confrontations with all
employees, and generally was not well liked. However,
he was credible. In fact, he not only has no interest in
the outcome of this matter but if anything would not be
disposed to testify favorably for the Respondent. In late
1982 Fox was terminated by the Respondent.
There is no credible evidence suggesting a casual con-
nection between Edgefield's grievances and his dis-
charge. Further, during the course of his employment,
Edgefield filed many grievances alleging harassment by
Fox. Had the Respondent been disposed to discriminate
against Edgefield because he had filed grievances, it
seems more reasonable that the Respondent would not
have recalled him from a protracted layoff. The fact that
Edgefield was recalled tends to suggest that his filing
grievances was not a matter of particular concern to Fox
or to the Repsondent generally. Indeed the Respondent
is involved in defending many grievances by many em-
ployees.
I therefore conclude that Edgefield was discharged be-
cause he hit Fox on April 30, 1982. In doing so, the Re-
spondent did not violate Section 8(a)(1) or 8(aX3) of the
Act.
3. The 8(a)(1) activity
The allegations of 8(a)(1) violations concern the state-
ments Fox is supposed to have made to Edgefield in
mid-April and on April 30. Since I find they did not
happen, I conclude the Respondent did not thereby vio-
late Section 8(a)(1).
On these findings of fact and conclusions of law, and
on the entire record, I issue the following recommend-
ed'
ORDER
The complaint is dismissed in its entirety.
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.
1222