Cone Mills Corp.---White Oak Plant

National Labor Relations Board - Board Decisions

May 25, 1990

298 N.L.R.B. 661 (N.L.R.B. 1990)

CONE MILLS CORP 661
Cone Mills Corporation-White Oak Plant and
Marie E. Darr. Case 11-CA-7458
May 25, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFr, DEVANEY, AND OVIATT
There are two basic issues in this case. First, is it
appropriate for the Board to defer to the arbitra-
tor's award under the standards set forth in Spiel;
berg Mfg. Co.I and Olin Corp.?2 For the reasons
discussed in section III below, we find that the ar-
bitrator's award is clearly repugnant to the pur-
poses and policies of the Act, and we do not defer
to it.
Second, did the Respondent suspend and subse-
quently discharge Charging Party Marie Darr in
violation of Section 8(a)(1) and (3) of the Act? For
the reasons discussed in section IV below, we find
that the Respondent did unlawfully suspend and
discharge Marie Darr,
1. FACTS3
Marie Darr was a union steward. In June 1977,
she received a written warning for leaving her de-
partment without permission. The record does not
show whether this incident was in conjunction
with her performance of her union duties. In any
event, Darr pursued her union activities and re-
sponsibilities in an "active and aggressive" manner;
prior to November 1, 1977,4 she performed these
duties at her discretion during her regular 11 p.m.-
7 a.m. (third) shift as a frame cleaner in the spin-
ning department.
Not long before the incidents in question here,
the Respondent discharged three union stewards.
Darr and other employees circulated a petition
among the employees to protest these discharges.
r 112 NLRB 1080 (1955). In Spielberg, the Board set forth the follow-
ing criteria , all of which must be met before the Board will defer to an
arbitration award ( 1) the proceedings must be fair and regular , (2) all
parties must agree to be bound ; and (3) the decision must not be clearly
repugnant to the purposes and policies of the Act. In the instant case, the
parties have stipulated that the first two criteria have been met, and also
that the arbitrator considered both the contractual and unfair labor prac-
tice issues. Thus, the only deferral issue in this case is whether the arbi-
trator's award is clearly repugnant to the Act
268 NLRB 573 {1984) In Ohn, the Board stated that it would not
require an arbitrator's award to be totally consistent with Board prece-
dent , and that the Board would refuse to defer to an award on the
grounds of repugnancy only if the award were shown to be palpably
wrong, i e , not susceptible to an interpretation consistent with the Act
Id at 574
s The parties have stipulated that the facts as found by the arbitrator
are the facts out of which Darr's discharge arose . The following recita-
tion of facts is based on the arbitrator's findings of fact, as supplemented
by the parties' stipulation of fact
4 All dates in this section are 1977, unless otherwise indicated
On Friday, October 28, Darr was informed by
the Respondent that frame cleaners were going to
be required to take their breaks at the scheduled
times of 12:30 to 12:45; 2:30 to 2:50; and 4:45 to 5
a.m. Darr protested this break schedule on the
grounds that it limited her ability to perform her
duties as a union steward. She did not follow this
break schedule on her shifts, which began on
Sunday, October 30, and Monday, October 31, and
the schedule was not enforced by the Respondent.
On November 1, around 11:30 p.m., Darr and
her supervisor, Maurice Willis, discussed the effect
of the break schedule on Darr's duties as a shop
steward. Willis indicated that grievances would
have to be filed during scheduled breaktimes; he
did not indicate that Darr would be given permis-
sion to leave her job at other times for union busi-
ness. Darr verbally grieved this matter, and she
and Willis agreed that it should be referred to Shift
Supervisor or Overseer Lonnie Walker. Darr then
returned to her job.
About an hour later, around 12:30 a.m., Novem-
ber 2, Walker noticed the above-mentioned peti-
tion, protesting the discharges of three shop stew-
ards, lying on a table in the canteen. The petition
was signed by 33 employees; Darr's signature was
the first, and the petition appeared to be in her
handwriting. Walker picked up the petition and
took it to his office. Darr and several other em-
ployees saw Walker take the petition. Darr repeat-
edly asked Walker to return it. He refused. Darr
followed Walker to his office and again asked
Walker to return the petition. He again refused.
Darr then complained to Walker about the new
break schedule. She told him that she thought the
new break schedule was "unreasonable, absurd, and
we won't follow it." At the end of this discussion,
at or about 12:45, Darr returned to her job.,
Following her meeting with Walker, Darr and
several spooler department employees decided to
attempt again to get the petition back from Walker.
Since the next scheduled break for the spooler em-
ployees was not until 3'a.m., Darr (who was a'spin-
ning department employee) decided to work past
her newly scheduled 2:30 breaktime. She went on
break at 2:45, and thepl met with the spooler em-
ployees at 3 a.m. At or about 3:05 a.m., Darr and
the spooler employees went to Walker's office, and
again asked and argued for the petition to be' re-
turned. Walker again refused. As the employees
were leaving, Walker asked Darr to stay. Darr
agreed to do so, and was permitted to have another
employee also remain , as a witness.
Walker told Darr that she had not followed her
scheduled breaktime and that he believed that her
conduct involved a flagrant failure to follow in-
298 NLRB No. 70
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
structions pertaining to her assigned break sched- II. PROCEDURAL BACKGROUND
ule. Walker then suspended Darr and instructed
her to go home and to call Department Head
LeRoy Drinkwater the next day. Darr refused to
go home and she returned to her job. In his notes
on this incident, Walker wrote, "This is clearly in-
subordination and I do not want any other charge!"
Walker instructed Willis to keep an eye on Darr.
Walker then called the Respondent's security offi-
cer, who sometime later arrived with two city
police officers. Walker again asked Darr to leave
the plant; she again refused, and she also refused to
go to Walker's office. In the meantime, the security
officer had consulted with Drinkwater, and they
decided to leave Darr alone. Darr finished her shift
at 6:30, a.m. and left the plant.
On Friday, November 4, Darr met with Drink-
water. He reviewed the events of the morning of
November 2. He emphasized that Darr had altered
her scheduled break without notifying her supervi-
sor and that she had refused to leave the plant
when instructed to do so. Drinkwater told Darr
that she was being discharged. At some point, Darr
stated that the Company violated its own rules
when it did not remove her from the plant after
her refusal to leave. In response, Drinkwater ex-
plained that (1) Darr had not engaged in disorderly
conduct; (2) she had returned to her job without
any further incidents; (3) she had remained on her
job performing her job duties and did not associate
with any groups or attempt to disrupt the oper-
ation; and (4) she had at that point only been sus-
pended, not terminated.
The Respondent's written report of "Suspension
and Discharge," signed by Walker and Drinkwater,
states in full as follows:
Employee violated Plant Rule-Insubordina-
tion on Nov. 2 by refusing to carry out the
reasonable instruction of the supervisor. Spe-
cifically, the employee refused to comply with
the break schedule established for her job clas-
sification and, furthermore, refused to leave
the plant when instructed by the supervisor.
In addition, the employee had received a
written warning for violating the Plant Rule-
Leaving the department without permission-
on June 14, 1977 and was informed at that
time that another violation of plant rules
within 12 months would result in discharge.
The employee was suspended on Nov. 2 and
after careful investigation of the facts it was
determined that she had violated the rules
stated above and is therefore Discharged.
On November 11, 1977, Darr filed a grievance
under the appropriate provisions of the then-cur-
rent collective-bargaining agreement between the
Respondent and the Amalgamated Clothing and
Textile Workers Union , AFL-CIO, CLC, Local
1391 (the Union).
On February 13, 1978, Darr filed the unfair labor
practice charge in the instant proceeding.
On March 31 , 1978, the Regional Director for
Region I1 of the Board notified Darr and the Re-
spondent that further proceedings on the unfair
labor practice charge were to be administratively
deferred to the contractual grievance procedure in
accordance with the principles set forth in Dubo
Mfg. Corp., 5 since the issues involved in the unfair
labor practice proceeding were at that time pend-
ing arbitration.
A. Arbitrator's Award
The arbitrator conducted the arbitration hearing
on May 19, 1978, and issued his opinion and award
on August 18, 1978.
In the arbitration proceeding, the Respondent
contended that Darr was discharged for insubordi-
nation and that her discharge was therefore proper
as a matter of "just cause" under the collective-bar-
gaining agreement. The Union contended that Darr
was discharged because of her union activities and
that therefore her discharge was not for "just
cause" under the contract and was in violation of
the Act. The arbitrator separately considered the
contractual and unfair labor practice aspects of the
dispute.
1. Contractual issues
The arbitrator's discussion and resolution of the
contractual "just cause" question is set forth here
in pertinent part:
In this case two parallel but independent
managerial actions reached fruition and im-
pacted the Grievant on the third shift of No-
vember 1, 1977. The Company had planned
and attempted to enforce scheduled break
times for the grievant and approximately sev-
enty other employees. This plan clearly was
within the prerogative of management under
the Labor Agreement. The Company also set
in motion a plan to stifle the Grievant and
some thirty-two other employees in their con-
certed activity to prepare a petition. The
record is not clear about who was to receive
this petition or its exact purpose. The Compa-
5 142 NLRB 431 (1964).
CONE MILLS CORP. 663
ny's Overseer, however, deprived the Griev-
ant and other employees of the opportunity to
engage in this protected activity.
Confronted with these actions the Grievant
believed the Company was attempting to cur-
tail her grievance time and her associations
with her fellow employees. The Overseer's
taking of the petition clearly provoked hostili-
ty on the part of the Grievant. His constant re-
fusal to return it generated additional hostility.
Concurrent with the Overseer's misconduct,
the Grievant recognized, but deviated from
the scheduled break time by as much as fifteen
minutes. The Grievant also expressed the view
that the break schedule was "absurd" and she
would not follow it.
These actions finally led to the confronta-
tion meeting at 3:05 A.M. on November 2nd.
The Grievant and her fellow employees again
requested and argued for the return of their
petition. At the conclusion of their argument,
the Overseer then detained the Grievant. The
Overseer was sufficiently irritated to charac-
terize the Grievant's fifteen minute deviation
as a "flagrant failure to follow instructions"
even though he testified she could receive per-
mission for union activity time. He then sus-
pended the Grievant. This charge and suspen-
sion arose out of the Grievant's efforts to
process a complaint under the Labor Agree-
ment and not just a fifteen minute deviation
from the scheduled break time. The Company
offered no evidence to show the fifteen minute
deviation either interfered with operations or
was an inappropriate time for a grievance
meeting . In fact, the evidence shows all of the
Spooler employees at the meeting were on
their break time ' to avoid any interruption in
production. Under these circumstances, the
Grievant failed to seek permission for union
activity time and, if she had requested such
time, it could not have been withheld unrea-
sonably under the practices at this plant.
The Overseer's instructions for the Grievant
to leave the plant is another matter. Even
though the-Overseer's suspension was improp-
er at the time, the Grievant was obligated to
leave the plant. She failed to follow a direct
order of her Overseer. This misconduct was
insubordination under the just cause doctrine
in the Labor Agreement.
Under the just cause doctrine, discipline
must be appropriate for the proven offenses.
The Grievant had received a prior written
warning for leaving her, department without
permission. In this case, she has committed a
similar offense as well as insubordination. At
the same time the Company's Overseer, pursu-
ant to his Department Head's instructions, cur-
tailed and stifled the Grievant and her fellow
employees while they were engaging in pro-
tected activity. The Overseer's conduct and
accusations contributed to and provoked the
Grievant's insubordination. A sustaining of the
discharge in this case would leave employees
with no assurance that their agreement would
protect them when they engaged in concerted
activity. At the same time, an award of back
pay would provide supervisors with little as-
surance that their instructions would be
obeyed by employees. This Grievant must rec-
ognize and accept managerial authority and
use the grievance procedure to resolve private
contract disputes. Under the just cause doc-
trine this Arbitrator has' concluded the Griev-
ant should be reinstated without back pay.
This award is consistent with the common law
of the shop and numerous reported arbitration
cases.
2. Unfair labor practice issues
The arbitrator's discussion and resolution of the
unfair labor practice question is set forth here in
pertinent part as follows:
In this case, the Union has argued contract
as well as NLRA statutory principles. These
statutory arguments raise the issues of whether
the discharge was an 8(a)(1) reprisal for engag-
ing in section 7 protected activities and wheth-
er the discharge was an 8(a)(3) violation in-
volving discrimination to discourage union
membership. The Department Head's plan to
stifle the Grievant's petition preparation activi-
ties and the Overseer's implementation of that
plan constituted an 8(a)(1) violation. The de-
velopment and implementation of the new
break schedule, however, was for legitimate
business reasons.
It was against this background that the
Grievant attempted to process complaints as a
Union Steward. Her union activity led to the
confrontation meeting at 3:05 A.M. on No-
vember 2, 1977. Her Overseer did not mention
or raise her fifteen minute break time deviation
until after her vociferous attempts to reclaim
her group's petition. Immediately following
this confrontation, the Overseer detained the
Grievant and suspended her for deviating fif-
teen minutes from the break schedule without
her supervisor's permission. Given the fact the
break schedule was not enforced on two prior
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
days, the fact that grievance time was permit-
ted at the plant , and the fact the Overseer did
not object to the Grievant 's presence at the be-
ginning of the meeting , the reasonable infer-
ence is that the Overseer 's primary motive for
the suspension was the Grievant's vigorous
pursuit of grievances and her petition prepara-
tion activity . The removal of the Grievant
from the plant would have deprived fellow
employees of the Shop Steward and discour-
aged their participation in the union.
The Department Head then became the
prime mover in permitting the Grievant to
remain at her job for the remainder of the shift
and informing her of her discharge at the
meeting on November 4, 1977. At this meeting
the Department Head revealed that he con-
doned the Grievant 's remaining on the job be-
cause she ceased her protected activities. In his
notes he referred to the fact that she ceased
her "disorderly conduct ," "returned to her job
without further incident ," [and] "did not asso-
ciate with any groups nor attempt to disrupt
the operation ." The significant conduct which
would precipitate such comments was the
Grievant 's engaging in protected activities.
The Department Head made no attempt to ex-
plain his decision in terms of any desire to
avoid a possible scene at the plant. Instead, he
accepted her refusal to leave the plant because
she ceased her union activities . The primary
motive and concern of the Department Head
in taking the disciplinary actions in this case
were the Grievant's concerted union activities.
Considering the record in this case, I believe
the Union has met its burden of proving that
the discharge was a violation of 8(a)(1) and
8(a)(3).
In such dual-motive cases , the NLRB may
order reinstatement if it finds by a preponder-
ance of the evidence that any employee was
discharged for union activities even though
some evidence indicates that the discharge was
for cause . The Board , of course , cannot re-
quire reinstatement or back pay if an employee
is discharged for cause under 10(c). The evi-
dence in this case does not show a compelling
reason for the discharge other than for union
activity . The Board probably would issue a
standard order to cease and desist, offer rein-
statement , back pay and post if this case was
litigated under NLRB procedures.
Darr returned to work on October 16, 1978,
having been on maternity leave since the preceding
August 22. She did not receive backpay.
B. Unfair Labor Practice Complaint
The Regional Director did not defer to the arbi-
trator's award, and on May 10, 1979, the General
Counsel issued the instant complaint , alleging, inter
alia, that the Respondent discharged Darr because
of her protected concerted and union activities, in
violation of Section 8(a)(l) and (3) of the Act. In
its answer to the complaint, the Respondent denied
the commission of any unfair labor practices and
argued , as an affirmative defense, that the allega-
tions of the complaint were heard and resolved in
an arbitration proceeding that met the standards for
deferral set forth in Spielberg Mfg. Co., supra.
C. Stipulation
In November 1979, the Respondent, Charging
Party Darr, and the General Counsel (the parties)
entered into a stipulation in which they agreed that
the proceeding could be submitted directly to an
administrative law judge, without need for oral tes-
timony or a hearing, for the judge to make findings
of fact and conclusions of law and to issue a deci-
sion. The parties stipulated to the administrative
law judge that the arbitration proceedings were fair
and regular; that all parties had agreed to be bound
by the arbitration decision; that the arbitrator had
considered both the contractual and the unfair
labor practice issues; and that the arbitrator specifi-
cally found for the grievant on the unfair labor
practice issue , but also specifically found insubordi-
nation under the contract and awarded reinstate-
ment without backpay. The parties further stipulat-
ed to the judge that the sole issue for his determi-
nation was whether deferral to the arbitration
award was appropriate under the , Board ' s policy
that the arbitration decision must not be clearly re-
pugnant to the purposes and policies of the Act.
The General Counsel argued to the judge that
the arbitrator 's award was per se repugnant to the
purposes and policies of the Act because (1) al-
though the arbitrator found that Darr was dis-
charged in violation of the Act, he did not grant
her the full remedy-reinstatement plus backpay-
to which she would be entitled under the Act; and
(2) by denying backpay, the arbitrator effectively
penalized Darr for engaging in protected activity.
The Respondent argued to the judge that he
should defer to the arbitrator's award because it is
neither repugnant per se nor repugnant under the
circumstances for the arbitrator to have awarded
reinstatement in remedying the unjust discharge,
but to have denied backpay in punishing the insub-
ordinate refusal to leave the plant.
CONE MILLS CORP. 665
D. Administrative Law Judge's Decision
Administrative Law Judge Benjamin Schlesinger
issued his decision on December 31, 1979.6 He
found the arbitrator's award to be clearly repug-
nant to the purposes and policies of the Act, and
thus not appropriate for deferral. He found that the
Respondent had unlawfully suspended and subse-
quently discharged Darr, and he recommended
that she be reinstated and made whole.
The judge found it unnecessary to rule on the
General Counsel's contention that the arbitrator's
award was per se repugnant to the purposes and
policies of the Act because it failed to award back-
pay along with reinstatement for the unlawful dis-
charge.
First, the judge found that the arbitrator's award
established that at least the primary motive for
Darr's discipline was her protected concerted ac-
tivities, and that these activities were so inextrica-
bly intertwined with her alleged insubordination
(i.e., in refusing to leave the plant upon being un-
lawfully suspended) that no punishment of Darr
was warranted.
Next, the judge found that the arbitrator's award
actually established that the only motive for the Re-
spondent's discharge of Darr was her union and
protected' concerted activities, and that there was
no valid reason for the Respondent to discipline
Darr. Thus, the judge found that Darr's failure to
follow the new break schedule on October 30 and
31 was excused, because the new schedule was not
enforced. He found that Darr's failure to adhere to
her break schedule on November 2 to attend a
grievance meeting was excused by the arbitrator on
the grounds that (1) the i 5-minute deviation did
not interfere with the Respondent's operations; (2)
the time for the grievance meeting was not inap-
propriate since it coincided with the break of the
spooler employees; and (3) Darr would have been
entitled to meet for union activities at that time,
had she sought permission. The judge also noted
that the arbitrator found that Darr's suspension for
failure to adhere to her break schedule was im-
proper. Finally, the judge noted that Darr's refusal
to leave the plant when ordered to do so upon
being suspended, while found by the arbitrator to
be insubordination warranting some form of disci-
pline, was also found by the arbitrator to have been
both (1) provoked by Walker's conduct in taking
and repeatedly refusing to return the petition, and
(2) condoned by Drinkwater's conduct in declining
to have Darr removed from the plant following
her suspension, because she ceased her union and
protected activity.
6 The judge's decision is reported at 273 NLRB 1515, 1517 (1985)
The judge concluded that Darr's union and pro-
tected concerted activity was the Respondent's sole
motive in disciplining her, and that the arbitrator's
award was thus clearly repugnant to the Act in
finding just cause under the contract for this disci-
pline.
Both the Respondent and the General Counsel
filed exceptions to the judge's decision.7
E. The Board's Initial Decision
On January 22, 1985, the Board issued its initial
Decision and Order in this proceeding," reversing
the judge's finding that the arbitrator's award was
repugnant to the Act, and instead deferring to the
arbitrator's award. The Board applied the standard
for repugnancy set forth in Olin Corp. (which
issued subsequent to the judge's decision) and
found that the arbitrator's award was not repug-
nant to the Act because it was not palpably wrong,
i.e., it was susceptible to an interpretation consist-
ent with the Act, and thus appropriate for deferral.
The Board noted that the failure of an arbitration
award to give a, complete make-whole remedy does
not automatically render the award repugnant and
unsuitable for deferral. The Board found that in the
instant case the arbitrator permissibly considered
the relative merits of the positions of the parties
and gave a partial remedy based on his assessment
of the respective merits. The Board found that it is
the essential nature of the arbitration process to
balance the competing claims of the parties by ad-
justing the equities involved to reach a harmonious
result, and that the General Counsel had failed to
prove that the arbitrator's award was palpably
wrong, and thus repugnant.9 Accordingly, the
Board deferred to the arbitrator's award and dis-
missed the complaint allegation that the Respond-
ent violated the Act by discharging Darr.
On August 8, 1985, Darr filed a petition for
review of the Board's decision in the District of
Columbia Circuit Court of Appeals.
F. Court's Opinion
On September 26, 1986, the court issued its opin-
ion in this proceeding,1 ° finding the Board's justifi-
cation for deferring inadequate and remanding the
case to the Board for further consideration (or ex-
planation) of why deferral is appropriate.
7 The General Counsel excepted to the judge's failure to find in the
alternative that the arbitrator's award of reinstatement without backpay
as a remedy for unlawful discharge is per se repugnant to the purposes
and policies of the Act
8 Cone Mills 1, 273 NLRB 1515 (1985).
9 Id. at 1516
10 Darr v. NLRB, 801 F 2d 1404 (D C Cir. 1986)
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The court noted the Board's contention that it is
not obliged under the Act to provide backpay
along with reinstatement. However, the court
stated:
We think it plain, however, that under
Board precedent if the Board had found what
the arbitrator did, it would have ordered
make-whole relief-backpay as well as rein-
statement. Although Section 10(c) of the Act
(29 U.S.C. 160(c)) gives the Board some dis-
cretion to determine when backpay is an ap-
propriate remedy, the need to compensate a
wrongfully discharged employee and the im-
portance of deterring future wrongful conduct
by the employer generally require that the
llBoard award a make-whole remedy.
The court stated that the propriety of the
Board 's deferral to an arbitration award that is
"doctrinally different" from Board precedent
would likely depend on the Board's reasons for
such deferral. In this regard, the court perceived
that the Board's deferral policy, as it has developed
since Spielberg, has seemed to interweave several
separate theories supporting deferral. After identi-
fying and defining these theories, the court ulti-
mately expressed its inability to discern clearly the
reasons for the Board's deferral to the arbitration
award in the instant case and remanded the case to
the Board for further consideration (or explanation)
of its reasons for deferring.12
III. DEFERRAL
In accordance with the terms of the court's
remand, we have further considered the Board's
reasoning in Cone Mills I for deferring to the arbi-
trator's award, and, having further considered it,
we have decided to reject it.13 Rather, we find, in
agreement with the administrative law judge and
for the reasons discussed below, that the instant ar-
bitration award is clearly repugnant to the purposes
and polices of the Act, and that deferral to that
award is therefore not warranted.14
11 Id at 1407 (citations and footnote omitted).
12 The Board accepted the court's remand and notified the parties that
they could file statements of position with the Board All did so Also,
Public Citizen and Teamsters for a Democratic Union filed a motion for
leave to file a statement of position as amid cunae The motion is grant-
ed and the amici statement of position is accepted
13 As an institutional matter, we note that none of the present Board
members were members at the time the Board issued its decision in Cone
Mills I
14 It is, of course, well established that "the Board need not
[defer] where the award is `clearly repugnant to the purposes and policies
of the Act Consolidated Freightways v. NLRB, 892 F 2d 1052, 1058
(D C Cir 1989) (quoting Hribar Trucking, 166 NLRB 745, 754 (1967),
enfd in part 406 F 2d 854 (7th Cir 1969)) Because we have decided to
overrule the Board's prior decision in this proceeding and not to defer to
the arbitrator 's award, we find that it is not necessary or appropriate for
us to explore further in this case the matters raised by the court about
Under Olin, supra, the Board will find an arbitra-
tor's award to be repugnant to the Act if it is pal-
pably wrong, i.e., not susceptible to an interpreta-
tion consistent with the Act.15 Therefore, the ques-
tion before us is whether the arbitrator's award of
reinstatement but without backpay is susceptible to
an interpretation consistent with the Act. To re-
solve that question, we turn to an examination of
the arbitrator's factual findings.16
The arbitrator found that Darr's suspension was
"improper," as it "arose out of the Grievant's ef-
forts to process a complaint under the Labor
Agreement." The arbitrator further found that the
Respondent engaged in misconduct by interfering
with the right of Darr and her fellow employees to
engage in protected concerted activity and that this
misconduct "contributed to and provoked" Darr's
allegedly insubordinate refusal to leave the plant
after her improper suspension. Finally, the arbitra-
tor found that Darr's refusal to leave the plant was
"condoned" by the Respondent because she ceased
her protected activities.
And yet, notwithstanding his findings above, and
in spite of the absence of any finding that Darr en-
gaged in conduct in response to the Respondent's
provocation that was so extreme or egregious as to
be unprotected, the arbitrator nevertheless conclud-
ed that the Respondent's instruction to Darr to
leave the plant following her improper suspension
was "another matter" and that Darr's failure to
follow this order constituted "insubordination
under the just cause doctrine" sufficient to warrant
denial of backpay.
The arbitrator's decision is inherently inconsist-
ent. Most importantly, the arbitrator's conclusion
that Darr's refusal to leave the plant constituted in-
subordination warranting disciplinary action simply
cannot be reconciled with his fmdings that that
conduct was provoked by the Respondent's own
wrongful actions and was condoned by the Re-
spondent.17 Given those findings, the conclusion is
inescapable that the refusal to leave the plant
cannot properly be the basis for discipline.
Thus, we find nothing in the arbitrator's opinion
and award that provides a rational basis for the Re-
spondent's discharging Darr, apart from her union
activities, or that recounts misconduct that would
justify withholding her backpay. Absent such mis-
conduct, the arbitrator's refusal to award Darr
what might constitute a satisfactory basis for deferring to an arbitrator's
award that is doctrinally different from Board precedent
11268 NLRB at 574
16 Pursuant to Olin, supra, the facts presented to, and found by, the
arbitrator are critical to determining repugnancy
17 The Cone Mills I Board failed to address this critical inconsistency
in the arbitrator 's decision
CONE MILLS CORP. 667
backpay has the effect of penalizing Darr for en-
gaging in those protected activities that the arbitra-
tor found precipitated her discharge , a result that is
plainly contrary to the Act.1 s Consequently, the
award is clearly repugnant to the Act and we shall
not defer to it.19
IV. UNFAIR LABOR PRACTICES
We affirm the judge's conclusion that the Re-
spondent unlawfully suspended and discharged
Darr in violation of Section 8(a)(1) and (3) of the
Act. In analyzing this question, the judge prelimi-
narily remarked that "if a motive for the discipline
of an employee is in violation of the Act, that is
sufficient for the finding of a violation, despite the
fact that there' may be other valid reasons for the
same discipline," 273 NLRB at 1520 (emphasis in
original; citation omitted). This so-called "in part"
test for determining whether an employer has acted
unlawfully is not used by the Board. Subsequent to
the issuance of the judge's decision in this case, the
Board issued its decision in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved
by the Supreme Court in NLRB v. Transportation
Management'Corp., 462 U.S. 393 (1983). In Wright
Line, the Board abandoned the "in-part" language
and held that henceforth, in cases alleging viola-
tions of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation, once the
General Counsel has made a prima facie showing
sufficient to support the inference that an employ-
ee's protected conduct was a "motivating factor"
in the employer's decision, the burden would shift
i6 See Consolidated Freightways, 290 NLRB 771 ( 1988), enfd . 892 F 2d
1052 (DC' Cir. 1989), Garland, Coal & Mining Co, 276 NLRB 963
(1985)
19 In declining to defer under the circumstances of this case, we are
not ruling or implying that the Board would automatically refuse to defer
in all situations involving arbitration awards that provide incomplete
make-whole remedies , or, remedies not otherwise totally consistent with
Board precedent Here, we reiterate , the arbitrator's award is not suscep-
tible to any interpretation consistent with the Act , and it is on that basis
that we find the award repugnant to the Act and thus not appropriate for
deferral See Olin , supra, 268 NLRB at 574 . See also American Commer-
cial Lines, 291 NLRB 1066, 1075 at fn 44 (1988).
Member Devaney emphasizes that , as the Board recognized in Olin
Corp., 28 NLRB at 574, "national labor policy strongly favors the vol-
untary arbitration of disputes " In furtherance of this policy, Member De-
vaney would not find that to warrant deferral an arbitrator 's award must
in all circumstances include a complete make-whole remedy. On the facts
of this case , Member Devaney believes that deferral to the arbitrator's
award is not warranted . In this regard, Member Devaney underscores the
inconsistencies inherent in the ' arbitrator's award . The arbitrator expressly
found that, the Respondent 's suspension of Darr was improper , as based
on protected union activities ; that Dan's subsequent refusal to leave the
plant was provoked by the Respondent's own wrongful actions and was
condoned by the Respondent; and that there was no compelling reason
other than her union activity for her discharge based on her refusal to
leav the plant Notwithstanding these findings, the arbitrator held that it
was appropriate to deny Darr backpay because she refused to leave the
plant Accordingly , in the unique circumstances presented , Member De-
vaney concludes that deferral is unwarranted here
to the employer to demonstrate that the same
action would have taken place even in the absence
of the employee's protected conduct. 251 NLRB at
1089. In the instant case, the judge found, and we
agree, that Darr's union and protected activity was
the only reason she was disciplined. Thus, the Re-
spondent has not established that it disciplined
Darr for any valid reason, and has therefore failed
entirely to establish that it would have disciplined
Darr in the absence of her union and protected ac-
tivities.
Moreover, to the extent that the Respondent at-
tempted to establish that it discharged Darr be-
cause of insubordination stemming from her refusal
to leave the plant when ordered to do so following
her suspension, we agree with the judge that
Darr's refusal to leave the plant was provoked by
the Respondent's improper interference with her
duties as union steward and by her unlawful sus-
pension. See Brunswick Food & Drug, 284 NLRB
663 (1987), enfd. mem. 859' F.2d 927 (11th Cir.
1988).20
V. CONCLUSION
In light of all the above considerations , we over-
rule the Board's initial decision and order in this
case to the extent that it deferred to the instant ar-
bitration award and dismissed the complaint allega-
tion that the Respondent violated Section 8(a)(3)
and (1) of the Act by disciplining the Charging
Party. Instead , we affirm the rulings, findings, and
conclusions of the administrative law judge, subject
to our discussion here.21
20 Chairman Stephens agrees that under the factual circumstances
found by the judge the Respondent cannot properly rely on Darr's refus-
al to leave the plant as a lawful ground for her discharge- First , Darr's
refusal was a response to an immediate unlawful provocation-the sus-
pension that we have found was unlawfully motivated Second, the re-
marks of Supervisor Drinkwater , the department head , concerning why
he had not ordered Darr removed from the plant upon her refusal to
leave-that she had not been disorderly , had returned to her job and per-
formed her duties without further incident , and had not in any way at-
tempted to disrupt operations-indicate that the Respondent had not
viewed this as a serious incident of misconduct Chairman Stephens
therefore finds that Darr's response to the Respondent's unlawful provo-
cation was not so extreme as to permit the Respondent to rely on it to
discharge her Brunswick Food & Drug, supra, 284 NLRB at 684-685;
NLRB V M & B Headware Co, 349 : F 2d 170, 174 (4th Cir. 1965), Blue
Jeans Corp, 170 NLRB 1425 (1968) He regards this case as distinguish-
able from Paradise Post, 297 NLRB 876 (1990), in which he dissented
from a finding , on an unlawful provocation theory, that an employee's
act of walking off the job in midshift did not provide a lawful ground for
discharge In Paradise Post, the allegedly provocative unfair labor prac-
tices were some unlawfully motivated pay discrepancies that had oc-
curred in previous months and been left unresolved , and in Chairman
Stephens' view, the employee 's conduct was sufficiently extreme as not to
be immunized by the employer 's earlier unfair labor practices
21 In the Board 's initial decision in this case, it adopted the judge's
conclusion that the Respondent independently violated Sec 8(a)(1) in
two separate respects and it issued an appropriate remedial Order against
the Respondent in regard'to those two violations of the Act . The record
establishes that the Respondent has complied with the Order issued by
Continued
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that
the Respondent, Cone Mills Corporation-White
Oak Plant, Greensboro, North Carolina, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending, discharging, or otherwise dis-
criminating against employees in regard to hire or
tenure of employment, or any term or condition of
employment, because of their union activities or
their engaging in concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed them in Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind the suspension and discharge of
Marie E. Darr22 and make her whole for any loss
of earnings and other benefits suffered by reason of
the discrimination against her, with interest.23
(b) Remove from its files any reference to the
unlawful suspension and discharge of Marie E.
Darr, and notify her in writing that this has been
done and that the suspension and discharge will not
be used against her in any way.
(c) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facility in Greensboro, North
Carolina, copies of the attached notice marked
"Appendix. 1124 Copies of the notice, on forms pro-
vided by the Regional Director for Region 11,
after being signed by the Respondent's authorized
the Board in its initial decision Thus , our Order in the instant decision
pertains only to the unlawful suspension and discharge of the Charging
Party
22 The Respondent reinstated Darr to her former position on October
16, 1978
23 Backpay will be computed in accordance with F. W Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987)
24 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT suspend , discharge, or otherwise
discriminate against you in regard to hire or tenure
of employment , or any term or condition of em-
ployment, because of your union activities or your
concerted activities for purposes of collective bar-
gaining or other mutual aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of your rights guaranteed in Section 7 of the
Act.
WE WILL rescind the suspension and discharge
of Marie E. Darr and make her whole for any loss
of earnings and other benefits suffered by reason of
the discrimination against her, plus interest.
WE WILL remove from the personnel record of
Marie E. Darr any reference to her suspension or
subsequent discharge.
CONE MILLS CORPORATION-WHITE
OAK PLANT