Gulf States Asphalt Co.

National Labor Relations Board - Board Decisions

Dec 18, 1972

200 N.L.R.B. 938 (N.L.R.B. 1972)

938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gulf States Asphalt Company and Lesly W Beloney
Case 23-CA-3851
December 18, 1972
DECISION AND ORDER
On October 20, 1971, Administrative Law Judge'
Thomas S Wilson issued the attached Decision in
this proceeding Thereafter, Respondent filed excep-
tions and a supporting brief
On April 27, 1972, the Board remanded this
proceeding to the Administrative Law Judge for the
purpose of receiving evidence concerning the conten-
tions raised before the arbitrator and the evidence
which was presented to the arbitrator On June 2,
1972, the Administrative Law Judge issued the
attached Supplemental Decision in this proceeding
Thereafter, the Respondent filed additional excep-
tions and a supporting brief
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings
and conclusions of the Administrative Law Judge
and to adopt his recommended Order only to the
extent consistent herewith 2
The Administrative Law Judge concluded that,
although the arbitrator's award is otherwise cogniz-
able by the Board,3 the award and the partial
transcript of the arbitration proceeding establish that
"the unfair labor practice issue presented in the
instant proceeding was not presented to the arbitra-
tor, was not decided by him, and, if it had been,
would not be binding on the parties " The
Administrative Law Judge did defer to the award
insofar as the arbitrator decided the issue of contract
interpretation raised by Beloney's claim that the
work he was asked to perform was unsafe We do not
agree with the Administrative Law Judge's finding
that the unfair labor practice issue was neither
presented to nor decided by the arbitrator
In Airco Industrial Gases4 the Board held that
deference would not be accorded to the result of an
arbitration proceeding where the issue of respon-
dent's asserted discriminatory motive had not been
presented to the arbitral forum which considered the
disciplining of an employee In Yourga Trucking,
Inc, 5 the Board held that the burden to adduce proof
that the unfair labor practice issue had been
presented rests on the party asserting that the
i The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 We adopt the Trial Examiner s finding that Respondent by refusing to
accept grievances from the Union has refused to bargain in violation of Sec
8(a)(5) and (1)
3 Spielberg Manufacturing Company 112 NLRB 1080 There is no
contention here that the arbitration procedure was not fair and regular or
that the decision of the arbitrator was clearly repugnant to the purposes and
200 NLRB No 100
Board's statutory jurisdiction to resolve the issue of
discrimination should not be exercised, in this case
the Respondent In our opinion, Respondent has
presented sufficient evidence to establish that the
issue of motivation was litigated before the arbitra-
tor
Beloney was discharged on December 15, 1970,
following his admitted refusal to do certain work
which he claimed was unsafe within the meaning of
the contract On December 17, 1970, Beloney filed a
grievance claiming, inter aka, that
You might be surprised to know that J V
Srader [who discharged Beloney ] has called me
every name he could think of plus he has
threatened to kill me if I don't quit my job He
also said he would discharge me anyway because
I was the Steward of the job and because I also
talked to the Labor Board Man So it is easy to
see why I was discharged
I am charging the Company with Violation
Article XI, Section I & II [dealing with Inspection
of Equipment and Safety Hazards] of this
agreement, and unfair labor practices
On March 19, 1971, the grievance was presented to
Arbitrator John P Owens At the hearing before the
Administrative Law Judge on remand the Respon-
dent presented a transcript of a tape recording of
part of the arbitration proceeding 6 While this
transcript does not contain a clear statement of the
positions of the parties,7 the testimony recorded
thereon when considered in the light of the text of
the arbitrator's award establishes that the issue of
Respondent's motivation was litigated before the
arbitrator
The transcript consists entirely of Beloney's testi-
mony Respondent's attorney began the questioning
During this questioning Respondent offered into
evidence copies of a number of grievances filed by
Beloney on behalf of other employees and on his
own behalf The arbitrator, in his award states that
this grievance evidence was presented by Respon-
dent in an effort to establish a past pattern of
defiance and lack of commitment to duty Later the
arbitrator, while not directly referring to the griev-
ance evidence, states that Respondent contended
that it harbored no hostility towards Beloney because
he was a union steward but had, because of that fact,
exercised restraint in the face of Beloney's continued
belligerence and that the Respondent took the action
policies of the Act
4 195 NLRB No 120
5 197 NLRB No 130
6 The parties agree that the transcript is incomplete in that it does not
include the entire transcript of the arbitration hearing and in that there are
various gaps where the tape is so unintelligible as to be untranscnbable
7 As the Administrative Law Judge notes the tape was unintelligible at
the point where Respondent was about to state its contentions
GULF STATES ASPHALT CO 939
it did solely because of Beloney's attitude and refusal
to carry out instructions as an employee It seems
reasonable to assume that Respondent presented the
evidence as to Beloney's grievance filing both in
support of its belligerency theory and in support of
its effort to refute Beloney's contention, set forth in
the grievance he filed, that Respondent discharged
him because of his union activities
Moreover, the transcript of Beloney's testimony
before the arbitrator demonstrates that Beloney
presented evidence to support the unfair labor
practice contentions he raised in the grievance Thus
on direct examination by Respondent' s counsel
Beloney testified that during an incident in October
Srader told him "that he [Srader] had been told to
fire me and he was going to fire me because of my
activity in the union " Later, when questioned by his
representative, Union Business Manager Joynor,
Beloney testified as follows 8
Q [By Joynor ] Did you ever at any time ever
recall filing a grievance on behalf of any employ-
ee without his consent?
A No, I don't file a grievance unless an
employee says file it, of course, there is a lot of
fellows who should file a grievance and they don't
and I don't force them to file, in many cases if an
employee wants to file a grievance I never turn
him down, I go ahead and sign the grievance for
him
Q Prior to becoming a job steward for the
Teamsters, did you encounter any problems or
difficulties or differences with the manager
there-say J V Srader9
A No I didn't Half of the problems I have
until I became ajob steward
Q How Long after you became ajob steward
did you start countering a lot of problems9
A As soon as I started to sign the grievances
that the fellows wanted to file when they felt like
the contract has been violated and they had been
mistreated
Q There were a lot of grievances won? Is this
correct9 That was filed by different employees?
8 The Administrative Law Judge makes much of the fact that the
evidence of Beloney s grievance filing was accepted into evidence over
Joynor s objection that the evidence was irrelevant and immaterial as it
related to incidents which occurred prior to the incident leading to the
discharge While such objections might tend to indicate that Joynor was
taking the position that the issue of discriminatory motivation was not
before the arbitrator, the subsequent presentation by Joynor of the above-
quoted testimony tends to negate such an inference
9 Kalamazoo Typographical Union Local No 122 International Typo
graphical Union AFL-CIO (Booth Newspapers Inc d/b/a Kalamazoo
Gazette) 193 NLRB 1065 In Kalamazoo the arbitrator clearly set forth
which issues he was deciding and which issues he was not deciding We
consider that to be a desirable practice However where the arbitrator has
not done so we will look to the evidence and contentions which have been
presented to him together with the language of his award in an effort to
determine whether he has in fact disposed of the unfair labor practice issue
is The arbitrator quotes the following from art XIII
A Hah, yeah, there were a lot of grievances
been paid off because they were too outright
violated that the contract had been violated from
the front to the back, every Article in the
contract
Having determined that the unfair labor practice
issue was presented to the arbitrator we must now
determine whether, considered in the light of that
fact, the arbitrator's award nevertheless demonstrates
that the arbitrator did not resolve the unfair labor
practice issue The Board will refuse to defer to an
arbitration award where the unfair labor practice
issue has not been dealt with by the arbitrator 9 The
Administrative Law Judge finds that that is the
situation here and therefore finds this is not a proper
case for more than the limited deferral on the safety
issue Unlike the Administrative Law Judge we find
that the arbitrator has disposed of the issue of
Respondent's motivation in this case and therefore
we will defer to his award
As detailed above, a great deal of evidence was
presented to the arbitrator which suggested that
Respondent might have desired to discharge Beloney
in order to get rid of an active union steward It is
inconceivable to us that the arbitrator in considering
Beloney's grievance would have ignored such evi-
dence unless, as suggested by the Administrative Law
Judge, the arbitrator interpreted the contract as
precluding his disposition of the unfair labor prac-
tice
We perceive nothing in the arbitrator's award
which suggests that the arbitrator interpreted the
contract as precluding the issue of discrimination
The arbitrator initially states that the issue before
him is as follows "Was the Grievant, Mr Lesly W
Beloney, discharged for proper cause9" The arbitra-
tor points to three contract provisions as the relevant
provisions Article XI-Inspection of Equipment
and Safety Hazard, Article XIII-Grievance and
Arbitration Procedure,10 and Article XIV-Manage-
ment Rights" The first contract provision cited is
relevant to Beloney's claim that he was entitled to
refuse to perform the work as unsafe The second
Section 4 The arbitrators shall not have authority to alter amend or
change the terms and provisions of the Agreement in any way and
their decision shall be within the terms and provisions of the
Agreement The decision of the arbitrators within the purview of their
authority shall be final and binding on the parties The fees and
expenses of the neutral arbitrator shall be borne equally by the parties
ii The arbitrator quotes the following from art XIV
Section 1 The management of the working forces including the
right to plan direct, expand reduce and control operations , to hire and
assign to discipline suspend or discharge for proper cause and the right
to introduce any new or improved method or faculty as may be
necessary or desirable for the operation of the plant , shall be vested in
exclusively in the company , unless expressly limited by this Agreement
This authority will not and cannot be used for the purpose of discrimination
or intimidation and will be exercised only in a fair and reasonable
manner [Emphasis supplied I
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract provision sets up the arbitration procedure
and requires the award to be within the terms and
provisions of the agreement The last contract
provision cited provides that Respondent may
discharge for "proper cause" and further provides
that the power may not be used for discrimination or
intimidation 12
The term "proper cause" ordinarily excludes the
possibility of discharge for discriminatory reasons If
an employer is discharging an employee because he
is a union steward that discharge would not be for
proper cause Moreover, here the management rights
clause contains a specific prohibition against such a
use by Respondent of its discharge power Thus, we
have here not only the ordinary meaning of the term
"proper cause," but we also have the specific
statement that the discharge power cannot be used
for discriminatory reasons Thus, it is clear that the
issue of discriminatory discharge was within the
terms of the contract and therefore before the
arbitrator under the terms of the contract There is
nothing in the arbitrator's decision to indicate that he
took a contrary view In fact, to the contrary, he
noted Respondent's contention that it had no
hostility against Beloney because he was a union
steward without in any way indicating that he
thought the issue was outside the scope of his
authority We take the failure of the arbitrator to
discuss the issue further only as an indication that he
did not believe that the evidence of discrimination as
a motive had been sufficiently weighty to require
extensive discussion His disposition of this issue,
which we have found was presented to him, is of
course implicit in his rejection of the grievance
On the basis of the foregoing, as we have found the
issue of discriminatory motive was before the
arbitrator and disposed of by him, we believe that the
desirable objective of encouraging the voluntary
settlement of labor disputes will best be served by
our recognition of the arbitrator's award According-
ly, we honor the arbitrator's finding that Beloney was
discharged for dust cause, and thus find that the
discharge did not violate our Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
12 There is also a clause in the contract art VII sec 1 providing there
shall be no intimidation discrimination restraint or coercion by the
Company or any of its agents against employees because of membership or
nonmembership in the Umon There is no record testimony concerning
whether or not the article was raised before the arbitration Alrco Industrial
Gases supra Accordingly we do not rely on the presence of this provision
as indicating that the arbitrator must have considered the discrimination
issue
Gulf States Asphalt Company, Beaumont, Texas, its
officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to accept grievances from the Union
and refusing to bargain with the Umon about
grievances
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed them in Section 7 of the Act
2 Take the following affirmative action designat-
ed to effectuate the policies of the Act
(a) Accept and bargain with the Union about any
grievances the Union may file
(b) Post at its plant in Beaumont, Texas, copies of
the attached notice marked "Appendix " 13 Copies of
said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found
MEMBER KENNEDY, concurring
I concur in the result reached by my colleagues in
this case With respect to the discharge of Lesly W
Beloney, it is my view that it effectuates the policy of
the Act to give conclusive effect to the award of
Arbitrator John P Owen for the reasons set forth in
my separate opinions in Airco Industrial Gases 14 and
Yourga Trucking, Inc 15
MEMBERS FANNING and JENKINS, concurring in part
and dissenting in part
We concur with our colleagues in adopting the
Administrative Law Judge's finding that Respondent
violated Section 8(a)(5) and (1) by refusing to accept
grievances from the Union We do not agree with
Chairman Miller and Member Penello conclusion,
concurred in by Member Kennedy for different
reasons, that the Board should dismiss the 8(a)(3)
13 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National 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
14 195 NLRB No 120
15 197 NLRB No 130
GULF STATES ASPHALT CO 941
and (1) allegations of the complaint without reaching
a determination as to the merits
The Board is willing to defer to an arbitrator's
award to the extent that the issues have been
presented to the arbitrator and have been decided by
him as long as the other requirements of Splelberg16
are met In our opinion, the arbitrator, while
rejecting Beloney's claim that he had a right to refuse
to do certain work because of his claim that the work
was unsafe, did not determine whether Beloney's
activities as a union steward were responsible, in
whole or part, for his discharge Since that is the issue
presented to us we would proceed to determine the
merits of the 8(a)(3) and (1) allegations of the
complaint
The arbitrator's opinion is a long and detailed
document, yet it is completely barren of any
indication that the arbitrator disposed of the discrim-
inatory discharge issue The arbitrator states the key
issue as "whether any reasonable doubt exists that
the task which the Grievant was asked to perform
seriously endangered his physical safety, constituting
other than a normal hazard and danger of normal
plant operations " He makes no mention of the issue
which we are called upon to decide in discriminatory
discharge cases "Was the employee discharged
because of his union activities " Surely if he was
deciding an issue of such importance he would have
mentioned it when referring to the key issues
The arbitrator then goes to discuss at great length
the safety issue and concludes that there was no
reasonable basis for Beloney's claim The only other
matter he discusses in any manner is Respondent's
contention that Beloney's behavior exhibited a
pattern of defiance and belligerance toward manage-
ment There is no discussion of any possible unfair
labor practice in the discharge
Chairman Miller and Member Penello do not
disagree with the above, but are willing to presume
that the arbitrator must have disposed of the unfair
labor practice issue because it was presented to him
The difficulty with this approach is twofold First,
the presumption they apply not only places the
burden upon the General Counsel to prove that an
arbitrator did not dispose of the statutory violation
but to do so by proving a negative, an almost
impossible task Under this approach statutory rights
are bound to remain unvindicated in many cases If a
presumption is to be applied, it is one that places the
burden upon the alleged violator of the statute to
prove that the arbitrator's award did in truth dispose
of both the statutory and contract violations 17
Second, even applying their presumption, there are a
number of indications in the award at issue herein
that the arbitrator did not view the case before him
as presenting any statutory issues
Chairman Miller and Member Penello rely on the
fact that the arbitrator initially stated the issue as
"Was Beloney discharged for proper cause"
They note that the contract permits discharge for
proper cause and that the contract prohibits use of
this power for discriminatory reasons They further
find that a discharge for union activities could not be
for "proper cause " An interpretation that the unfair
labor aspects of this case are covered by the contract
is of course essential to their position, as the
arbitrator could not have considered this aspect if it
is not covered by the contract because the terms of
this arbitration clause They reach the conclusion
that the unfair labor aspects are covered by the
contract without the benefit of any expressed
interpretation of the contract by the arbitrator,
apparently on the assumption that the arbitrator
could not have interpreted the contract otherwise
However, here there are indications that at least one
of the parties to the contract, the Union, disagreed
with that interpretation and, further, that the
arbitrator may have agreed with the Union
The arbitrator notes that the Union objected to
Respondent's presentation of certain evidence with
respect to grievances on the ground that such
evidence was not relevant to the issues It is
inconceivable to us that the Union would have
objected on that basis if it had viewed the issue of
discriminatory discharge as before the arbitrator
Anyone with any experience in this area of labor
relations knows that evidence as to union activity is a
relevant ingredient in the proof of any case of
discriminatory discharge No union representative
would object to such evidence as not relevant while
asserting such a claim Moreover, when stating the
Union's contentions the arbitrator does not include
anything indicating that the Union was claiming that
the arbitrator should find that the discharge was not
for proper cause because it resulted from Respon-
dent's animosity toward Beloney because of his
activities as a steward Thus, it would seem clear that
the Union was taking the position that the discrimi-
natory discharge issue was not before the arbitrator
It is not clear in this incomplete record why the
Union took that position However, the explanation
which readily suggests itself is that the Union was
taking the position that that issue was not covered by
the terms of the contract The arbitrator here did not
deal with the possibility of discriminatory discharge
in any matter except to briefly note Respondent's
16 Spielberg Mfg Co 112 NLRB 1080
17 For these reasons we reject Member Kennedy s position stated in his
concurring opinion in Yourga Trucking 197 NLRB No 130 that it should
be the burden of the party seeking a result contrary to the arbitrator s award
to establish that the arbitrator did not consider the issue before the Board
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention that it was not hostile to Beloney because
he was a union steward 18 This failure to deal with
such an obviously important issue indicates that the
arbitrator agreed with the Union that the issue was
not before him 19 If the Union was taking the
position that the contract did not cover the issue of
discriminatory discharge, the arbitrator's complete
lack of discussion of the issue would seem to indicate
that he agreed with this position If so, then
Chairman Miller and Member Penello have inter-
preted the contract in a manner which is in conflict
with the arbitrator's interpretation The best that can
be said for the majority's position is that, while it
does not have support in the arbitrator's award, it
may not be in direct conflict if the Union was in fact
asserting that the discriminatory discharge issue was
not before the arbitrator for some other reason
Further, even if our colleagues' interpretation of
the contract is correct, that alone would not establish
that the arbitrator decided the issue Here the Union
was contending the issue was not before the
arbitrator and, as previously noted, the arbitrator
appears to have agreed with the Union's contention
Therefore, it must be concluded that he did not
decide the issue and, therefore, it is our obligation to
do so ,
The majority apparently agrees that the arbitration
award, in and of itself, is insufficient to establish that
the arbitrator has disposed of the unfair labor
practice issue Otherwise, they would not have
believed it necessary to remand to the Administrative
Law Judge for evidence as to what was presented to
the arbitrator Where, as here, the arbitrator's award
shows that the arbitrator did not consider the unfair
labor practice issue we believe such a remand was
unnecessary No matter how strongly it can be
shown that the unfair labor practice issue was
presented, the fact that it was not decided by the
arbitrator precludes our deferring to his award To
defer where the issue has not been considered is to
completely abrogate our responsibility to deal with
the unfair labor practice issues presented
Nor are we persuaded that the evidence introduced
at the hearing on remand indicates the unfair labor
practice issue was even presented to the arbitrator It
is true that some of Beloney's grievance filing
activities were detailed, but by Respondent to
support its claim that Beloney's attitude was belliger-
ent and that its discharge of Beloney was therefore
for good cause Beloney did, while being questioned
by Respondent, testifying that Plant Manager told
him " that he had been told to fire me and he was
going to fire me because of my activity in the union"
during one of the incidents prior to his discharge
The Union also presented certain evidence, which
Chairman Miller and Member Penello quote at
length, to the effect that Beloney's difficulties with
Respondent began when he became a steward This
evidence considered in isolation might be viewed as
indicating that the Union was asserting the unfair
labor practice issue However, it must be remem-
bered that the evidence was presented in a context of
the Union's assertion that only the safety issue was
before the arbitrator and would seem to be an
obvious attempt to refute Respondent's assertion
that Beloney's activities establish "a past pattern of
defiance and lack of commitment to duty " Under
these circumstances what the majority is doing is
finding that the Union's presentation of evidence
which goes to the belligerency issue , which may also
have a bearing on the unfair labor practice issue,
indicates that the unfair labor practice issue was
presented The effect of such a holding is to preclude
a party who contends that an unfair labor practice
issue is not before an arbitrator from presenting
evidence on any issue which could be construed as
an unfair labor practice evidence lest this presenta-
tion be construed to mean he is raising the unfair
labor practice issue We think that such a result
inhibits the presentation of evidence and therefore
has a detrimental effect on the arbitration process 20
We would adopt the Administrative Law Judge's
finding that the arbitration award does not dispose of
the 8(a)(3) and (1) issue and proceed to a disposition
of those issues on the merits
18 The fact that the party who would ordinarily have to defend against a
discriminatory discharge claim makes some statements denying the claim is
not sufficient , in our view to warrant a finding that the issue was before the
arbitrator
19 We note that in his Pncis of the Facts the arbitrator notes that
Beloney s grievance charged a violation of the safety provisions of the
contract but includes nothing of Beloney s contention that the discharge
was for his union activities Chairman Miller and Member Penello make
much of the fact that Belone' contended in his grievance that his discharge
resulted from his union activities If the Union contends that this is not a
proper issue for the arbitrator we see no reason to assume that the inclusion
of the contention in the original grievance indicates the arbitrator must have
disposed of it
20 As to Member Kennedy s separate concurrence we reject that
approach for the reasons stated in Airco Industrial Gases 195 NLRB No
120 and for the reasons set forth above
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to accept grievances from
the Union and we will not refuse to bargain with
the Union about grievances
WE WILL accept any grievance the Union or its
steward may present to us and will bargain with
the Union in good faith about the same
WE WILL NOT in any like or related manner
GULF STATES ASPHALT CO 943
interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization,
to form, join, or assist labor organizations,
including Teamsters Freight and Tank Line
Employees Local Union No 920, to bargain
collectively through a bargaining agent chosen by
our employees, to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any
such activities
GULF STATES ASPHALT
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Dallas-Brazos Building, Fourth
Floor, 1125 Brazos Street, Houston, Texas 77002,
Telephone 713-226-4296
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S WILSON, Trial Examiner Upon a charge duly
filed on January 19, 1971, by Lesly W Beloney, an
individual, herein referred to as the Charging Party or
Beloney, the General Counsel of the National Labor
Relations Board, herein referred to as the General
Counsel' and the Board, respectively, by the Regional
Director for Region 23 (Houston, Texas), issued its
complaint dated April 8, 1971, against Gulf States Asphalt
Company, herein referred to as the Respondent
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1), (3), and
(5) and Section 2(6) and (7) of the Labor Management
Relations Act, 1947, as amended, herein referred to as the
Act
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices
Pursuant to notice, a hearing thereon was held before me
in Beaumont, Texas, on June 11-12, 1971, inclusive All
parties appeared at the hearing, were represented by
counsel, and were afforded full opportunity to be heard, to
produce and cross-examine witnesses, and to introduce
evidence material and pertinent to the issues At the
conclusion of the hearing oral argument was waived Briefs
were received from General Counsel and Respondent on
July 12, 1971
Upon the entire record in the case and from my
observation of the witnesses , I make the following
FINDINGS OF FACT
I BUSINESS OF THE RESPONDENT
The complaint alleged, the answer admitted, and I
therefore find
Gulf States Asphalt Company is, and has been at all
times material herein, a corporation duly organized under
and existing by virtue of the laws of the State of Texas At
all times material herein, Respondent has maintained its
principal office and place of business at Houston, Texas,
and another place of business at 1399 Carroll Street in
Beaumont, Texas, where it is engaged in the manufacture
and distribution of asphalt and asphalt products The
Beaumont, Texas, operation is the only facility involved in
this proceeding During the past 12 months, a representa-
tive period, Respondent, in the course and conduct of its
business operations, manufactured and sold from its
Beaumont, Texas, plant products valued in excess of
$50,000 which were shipped from said plant directly to
States of the United States outside the State of Texas
Accordingly, I find that Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
II THE UNION INVOLVED
Teamsters Freight and Tank Line Employees Local
Union No 920 is the recognized bargaining representative
of Respondent's employees at its Beaumont, Texas,
facility At all times material herein the Charging Party,
Lesly Beloney, has been the Teamsters chief steward at the
Beaumont facility
III THE UNFAIR LABOR PRACTICES
A The Facts
Lesly W Beloney began his employment with Respon-
dent in 1959 as a truckdriver He worked for Respondent
continuously thereafter, exclusive of short periods when
laid off due to lack of work, until his discharge on the
afternoon of December 15, 1970 2
During 1960 Teamsters Freight and Tank Line Employ-
ees Local Union No 988 became certified as the
bargaining agent for Respondent's employees at its
Beaumont plant Since that time collective-bargaining
agreements have covered Respondent's employees at
Beaumont
About 1966 Respondent's employees elected Beloney
their chief plant steward which he remained until his
discharge In June 1968, Beloney, as such steward, filed
grievances relating to loss of pay for three drivers, himself,
Leroy Donald, and Lovett This led to a decision of the
Board, reversing the Trial Examiner, that Respondent had
I This term specifically includes the attorney who appears for the
General Counsel at the hearing
2 All dates herein are in the year 1970 unless otherwise specified
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violated Section 8(a)(5) of the Act by refusing to produce
requested information in regard to the above grievances 3
In April 1969, Beloney had been one of the union
negotiators and a signatory on behalf of Local 988 to a
renewal contract with Respondent which by its terms was
to expire on April 1, 1971 Among other provisions, this
contract contained the following clauses pertinent here
Article XI-Inspection of Equipment and Safety
Hazards
*
Section 2 No employee shall be required to perform
services that seriously endanger his physical safety
other than the normal hazards and dangers of normal
plant operations, and his refusal to do such abnormally
dangerous work shall not warrant or justify discharge
In all such cases a conference between the foreman,
safety man and Workmen's Committeeman or Com-
mitteemen shall be held to settle the issue
Article XIII-Grievance and Arbitration Procedure
Section 1 The Management agrees to meet the duly
elected representatives of the employees at any mutual-
ly agreeable time for the purpose of handling griev-
ances of employees covered by this Agreement The
Company agrees to promptly notify a Business Repre-
sentative of the Union of any disciplinary action taken
or contemplated
*
(4) If the grievance is not adjusted satisfactorily by
the Manager within five (5) days of Step (3), then
arbitration may be invoked as provided hereinafter
Section 2 The finding of the arbitration board,
if called, will be the exclusive method of settling
disputes and its decision shall be final and binding on
all parties
*
Section 4 The arbitrators shall not have authority to
alter, amend or change the terms and provisions of the
Agreement in any way, and their decision shall be
within the terms and provision of this Agreement The
decision of the arbitrators within the purview of their
authority shall be final and binding on the parties The
fees and expenses of the neutral arbitrator shall be
borne equally by the parties
On October 6, 1969, Local 920 was chartered by the
Teamsters and, with the consent of all parties, assumed the
collective-bargaining agreement negotiated by Local 988
Beloney remained as its chief steward at the Beaumont
plant
Throughout his tenure as such steward Beloney was
active in filing grievances on behalf of himself and other
employees Numerous grievance meetings have been held
between Respondent and Local 920
On March 4, 1970, Assistant Plant Manager Gene
Andrews posted the following notice to "All Drivers"
Effective this date, March 4, 1970, any driver failing to
turn in oil tickets or delivery tickets will automatically
be suspended for three days, without pay The second
offense will be seven days off, without pay
A similar notice with similar penalties was posted ad-
dressed to "All Operators " This was the third or fourth
time such notices had been posted
On Saturday, March 7, Beloney brought a load of oil to
the plant, informed the operator what type of oil it was,
and then departed the plant forgetting to turn in his trip
ticket in accordance with the above notice Al Green, the
operator, thereupon unloaded the truck tank of oil into the
proper storage tank On Monday, March 9, Beloney
delivered the trip ticket for this oil to the appropriate office
of Respondent On March 11 Plant Manager J V Srader
determined to discipline both Beloney and operator Green
with 2 days off without pay for violation of the March 4
notice 4 On March 16 Beloney and Green filed grievances
over such loss of pay which were subsequently denied by
Respondent
Just why Respondent gave Beloney and Green only 2
days' disciplinary layoff, instead of the 3 promised in the
March 4 notice, was not satisfactorily explained in this
record by Respondent Beloney testified that Srader had
offered to annul the penalties for both Beloney and Green
if Beloney would withdraw some of the grievances then
pending but that he, Beloney, had refused Srader denied
having made any such offer 5
On March 25, with some five or six grievances pending
including those of Beloney and Green mentioned above,
the parties held a grievance meeting at the plant Mrs
Bramble, described in this record as the "owner and
Chairman of the Board" of Respondent, with an attorney
and Srader, attended on behalf of Respondent, with Union
Business Manager A 0 Joynor, Beloney, and Green
representing the Union 6 During the course of this
grievance meeting, while the pending grievances were
being disposed of in one way or another (although some of
these grievances were further discussed at subsequent
grievance meetings), Srader complained that the "real
3 See the Board s decision in Gulf States Asphalt Company 178 NLRB
405 of which this Trial Examiner was asked to take official notice
4 Admittedly this was the first time any discipline had been meted out to
any driver or operator for failure to deliver the trip ticket Assistant
Manager Andrews acknowledged that, during his employment as an
operator at the Beaumont plant he had not only failed to collect the trip
ticket but had actually drained the oil into the wrong storage tank He had
not been disciplined
5 Andrews gave the only explanation of this penalty reduction to wit he
got soft hearted
I credit the testimony of Beloney who gave all the appearances of being a
straightforward careful honest witness As will become apparent hereinaft
er Srader did not
6 There is a conflict of testimony as to whether Mrs Bramble was in
attendance at the March 25 meeting As the first witness at the hearing
Srader testified that he did not remember if Mrs Bramble had been in
attendance but later as Respondent s witness he testified that the only
grievance meeting Bramble attended in 1970 was on June 15 As a witness
for Respondent , Business Manager Joynor believed that Mrs Bramble
and not Respondent President Spellman had been present on March 25 On
the other hand Beloney was positive Bramble was in attendance Neither
Mrs Bramble nor Respondent s attorney testified at the hearing From this
testimony I am satisfied that Mrs Bramble was, in fact present at the
March 25 grievance meeting
GULF STATES ASPHALT CO 945
trouble" was that so many grievances were being filed
Mrs Bramble then wanted to know "if it would do any
good if the Union would get another steward instead of
Beloney " Green answered by saying that changing
stewards would do no good as previous stewards had had
the same trouble with Srader that Beloney was having 7
With more grievances filed by Beloney pending, another
grievance meeting to dispose of them was held on or about
April 4-5
The next grievance meeting was held on June 15 with
some seven or eight additional grievances filed by Beloney
to be handled This meeting was attended by the same
individuals including Mrs Bramble Again all the pending
grievances were disposed of one way or another without
having arbitration demanded by the Union on any which
Respondent denied During the course of this meeting
Srader remarked that, if the Union would change stewards,
a lot of "problems" would be solved and suggested that
employee J C Orebo would make a good stewards
On August 25,9 Srader advised Beloney that Beloney
could no longer drive for Respondent as Respondent's
insurance company, Millers Casualty Insurance Company
of Texas, had canceled his coverage Beloney decided to
"bump back" into the labor department as he had a right
to do under the contract
On the morning of August 26, when Beloney reported to
Foreman Charles Johnson who was in charge of the labor
gang, Johnson first assigned the other laborers to various
jobs and then ordered Beloney to wash out a tank truck
Beloney objected on the grounds that his seniority entitled
him to the job of pouring asphalt, a higher-paying job, then
being performed by an employee whom Beloney contend-
ed had lesser seniority than Beloney had Johnson denied
that Beloney had greater semontyia and insisted that
Beloney do the work assigned When Beloney took this
seniority issue to Srader, Srader told him that he would
either do the work assigned or "go home " Beloney cleaned
the tank truck He filed a grievance which was subsequent-
ly demed by the Respondent 11
As more grievances filed by Beloney had accumulated,
another grievance meeting between Respondent and the
Union took place on September 8 This meeting was
attended by Respondent's president, Dr Spellman, and
Srader for the Respondent , with Joynor and Beloney for
the Umon During this meeting Srader stated that the
Union would have to get rid of Beloney before "this
trouble" could end and that the Union should get the men
together to elect another steward This time Beloney
answered by saying that he had been elected steward and
that would have to be the way the job would be taken away
from him 12
Sometime in September Andrews assigned Beloney and
employee Jochin the job of breaking open 50-pound bags
of slate and pouring the slate therein into buckets attached
to the conveyor belt of the slate machine located on the
ground floor of the plant These buckets were then hoisted
by conveyor belt up to and into the mouth of the mixing
tank located on the second floor , some 14 feet above the
ground floor With some 30 of these 50-pound sacks still to
go, the conveyor belt broke down Andrews asked Beloney
to carry these sacks from the ground floor up the stairs to
the second floor while Jochin was to carry them from the
stairs to the mixing tank Andrews also said that he would
go get them some help , which he did After making six or
seven trips up these stairs, Beloney's legs cramped While
he was leaning against an upright massaging his legs,
Srader , having seen employee Segnst make one trip up the
stairs, walked up and told Beloney "to grab another sack
and go up the stairway with it " When Beloney explained
that his legs had cramped from previous trips, Srader
ordered, "take a sack and go up there, either go up there or
go home" 13 About this time Andrews came down and
asked Srader "What is the beef'" After Srader told him
7 The above findings are made on the credited testimony of Beloney
Srader testified as follows in answering Respondent s questions
Q Now you said earlier at the June 15th meeting Mrs Bramble
was present
A Yes sir She was
Q Do you recall Mrs Bramble making any statement regarding
Mr Beloney s being the Union Steward9
A I do not I do not recall if she did If she did , I did not hear it
[Emphasis supplied ]
Neither Srader nor any other witness was asked about Mrs Brambles
statements at the March meeting when Beloney testified Mrs Bramble
made the statement I assume the above to have been a Shp of Respondent
attorney s tongue and consider the testimony given to constitute a denial
that Mrs Bramble made the statement at either meeting
Similarly Respondents counsel asked his witness Union Business
Manager Joynor the following questions
Q Was there any discussion that was had between you and Srader
during the June 1970 meeting about Lesly Beloney and his acting as
Union Steward9
A No sir
All the discussion I ever had with Mr Srader at these meetings Mr
Beloney was always present
Q Mr Joynor in this meeting in June 1970 did J V Srader say
that the Union should change Steward and that this change would
solve a lot of problems9
A He did not say it to me [Emphasis supplied ]
8 The above testimony of Beloney was denied by Srader As a witness for
Respondent Business Agent Joynor was asked by Respondent if Srader had
made the above statement Joynor s answer-or denial-was 'He did not
say it to me I credit the testimony of Beloney
These denials-if such they were-were not convincing
9 Beloney thought the date was sometime in May or June He was in
error
iS On cross examination , Johnson testified that he did the best he could
on seniority matters from my memory
u Except as to the matter of bumping back the seniority provisions of
the contract are ambiguous
12 On this general question Joynor gave the following enigmatic answers
TRIAL, EXAMINER In any of your discussions with any of the
supervisory people or officers or anybody else with the Company have
you ever heard the Company criticize Mr Beloney as far as his
activities as Steward out there at the Gulf States Asphalt Company9
THE WITNESS Not to my knowledge
TRIAL. EXAMINER Have they ever told you that he was good doing
a good lob as Steward out there?
THE WITNESS We never discussed his position as Steward with the
Company because we always took the position it wasn t any of the
Company s business who we had for job Steward [Emphasis supplied I
Joynor had a very positive manner of speaking The phraseology of his
answers however was to the contrary I was not impressed with his
reliability
13 Srader testified that he had watched Segrist make a trip up the stairs
while Beloney was leaning against a pole holding up the shed roof and
then asked Beloney to help Segnst carry the slate up to which Beloney
answered Go away and let me alone ' Srader s testimony omitted any
mention of Beloney s massaging his legs
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Beloney had said "Go away and leave me alone,"
Srader walked back to his office 14 Shortly thereafter
Beloney resumed carrying sacks to the second floor until
the job was finished
Early in October Beloney spoke to Andrews about the
fact that employee Roy Stevens had been laid off on
Friday, October 2, after 36 hours, work that week while
two other employees with lesser seniority than Stevens had
worked a full 40-hour week He requested 4 hours' pay for
Stevens Andrews refused On October 5 Stevens presented
Andrews with a grievance to this effect which had been
prepared by Beloney After looking at the grievance,
Andrews said, "Roy, I hope you know what you are doing
because you have no grievance" and attempted to return it
to Stevens who refused to accept its return Andrews
allowed the grievance to fall on the ground as both men
walked away from it Andrews testified that subsequently
he "got to thinking about it," returned and retrieved the
grievance, and, indeed, sometime thereafter added 4 hours'
time to Stevens' pay timecard Andrews admitted that he
said nothing to any employee about either retrieving the
written grievance or adding 4 hours to Stevens' timecard
Also on or about October 5 Beloney presented Andrews
with a written grievance on behalf of a number of
employees who claimed that they had been worked 16
hours in a 24-hour period and were requesting overtime
pay Beloney had also spoken to Andrews about this
previously but Andrews had refused to accept the
grievance because of a lack of specificity in the days and
hours involved After presenting this grievance on October
5 Andrews and Beloney were joined by Srader who, after
looking at the grievance, threw it into a nearby trashcan
Srader then walked to his office 15
On October 21 Beloney and Stevens were engaged in
palletizing 300 drums of asphalt weighing approximately
480 pounds each "Palletizing," as used here, is the moving
of asphalt-filled drums, cartons, etc, from the floor where
they have been filled with asphalt onto a pallet so that the
forklift can pick up the pallet and move it elsewhere or
place it onto a truck 16
Palletizing drums is usually a three-man operation with
two men rolling the drums to the pallet and a third man on
the pallet helping raise the drum onto the pallet It
frequently happens that the drums, weighing some 480
pounds when filled, become stuck to the floor either due to
overflow during filling or due to the heated asphalt in the
drums melting asphalt previously spilled on the floor
When cooled, the asphalt solidifies around the base of the
14 This was one of three occasions on which Beloney testified that Srader
offered to fight him Srader denied such testimony This is an immaterial
conflict which need not be resolved here
15 Employee Orebo testified that he saw Srader tear up a grievance and
throw it into the trashcan from which he Orebo later retrieved it
According to his testimony the envelope was in two pieces whereas the
grievance was in either four or six pieces Orebo was unable to date this
incident Respondent denied any knowledge of this grievance
16 The pallets used by Respondent are about 65 by 60 by 6 inches in size
They are constructed of hard wood consisting essentially of a top and a
bottom flooring separated by 2 by 6 inch stringers A pallet weighs between
180 to 200 pounds
17 Srader s story was that Stevens had been breaking the drums loose by
himself and Srader merely ordered Beloney to help Stevens when Beloney
said Go away and leave me alone This happens to be the exact same
statement Srader testified that Beloney had made during the conveyor
drum which requires that the drum be broken loose before
it can be rolled Lightly stuck drums can be broken loose
by one man but breaking a more tightly stuck drum is a
two-man operation frequently requiring the use of a 2 by 4
to pry the drum loose The forklift is also used to break
drums loose
After palletizing approximately 120 drums, Beloney and
Stevens began to run into drums that were stuck Srader,
who apparently had been watching the operation from a
distance , came up as Beloney was waiting for help from
Stevens to break loose one of the drums and ordered
Beloney to break the drum loose by himself Beloney
answered that he could not break it loose by himself
because it was stuck and that he needed help Srader
replied that Beloney was not man enough to break the
drum by himself and called him "yellow " Beloney told
Srader to break it himself to which Srader replied, "I don't
have to break it I got you to break it "17 At this point
Stevens came up and helped break the drum loose and
palletized it Beloney then went to get a drink of water In
Beloney's absence Srader admonished Stevens, "Quit
footing with Lesly before you get into trouble " Stevens
answered that he was his own man Srader then ordered
Stevens to proceed breaking drums loose by himself
without the forklift which is frequently used to break
drums loose or he would be fired Stevens refused on the
grounds that he could not break the drums loose by
himself Srader thereupon left the scene-in order, accord-
ing to him, to look at the morning mail 18
That afternoon Foreman Johnson ordered Beloney,
Jochin, and employee Isaac Guillory to load 400 cartons of
steep asphalt weighing 100 pounds each onto a truck After
the truck had been partially loaded, Johnson returned and
told them to "double load," i e, two cartons high, the
truck Beloney told Johnson that he had hurt his back
Johnson went to the office and informed Srader and
Andrews that Beloney had refused to obey his instructions
to double load the truck The three supervisors thereupon
walked to the truck where Srader told Beloney that he was
tired of having Beloney refuse to obey instructions all the
time and ordered "You pick up these cartons or go home "
Beloney explained that he had hurt his back (breaking
drums that morning) and wanted to see a doctor Srader
returned to the office after telling Beloney that he was
going to call the union business agent 19 In the office
Srader called Business Agent Joynor while his secretary
made arrangements for Beloney to see the doctor 20 When
incident It does not coincide with the testimony of either Beloney or
Stevens
18 Srader testified that Stevens used profane language after saying that
he was not going to break the drums loose by himself because Srader had
not made Beloney do it According to Srader at this point he, Srader
turned and left the scene in order to look at the morning mail This
incredible finale casts doubt on Srader s whole version of the story
Stevens testified that the episode ended with Srader threatening to cut
Stevens and to get the business agent so that he could discharge Stevens
Srader denied threatening to cut Stevens This conflict need not be resolved
although it is characteristic of Srader
19 This was a rather favorite threat of Srader s meaning that he was going
to discharge the employee Such disciplinary action required the presence of
the business agent according to the terms of the contract
20 Johnson testified that he had instructed the men to double load the
truck when he first assigned the job to them It seems noteworthy that
GULF STATES ASPHALT CO 947
Joynor appeared at the plant, he and Johnson disagreed as
to the safety of double loading
After examining Beloney's back, the doctor reported that
he was injured and could only do light work thereafter
Respondent gave Beloney light work for a period of 1 day
and then stated that there was no more light work for him
Beloney was, therefore, laid off for a period of a week or 10
days until the doctor cleared him for heavy work
The final incident in this saga occurred on December 14
That afternoon Johnson had ordered Beloney to palletize
75 cartons of asphalt weighing 100 pounds each Beloney
had just finished palletizing two pallets and Jochin, the
forklift operator, was moving those two pallets in one trip
to a truck being loaded about 100 yards away Srader and
Johnson were leaning up against a broken down tow motor
"watching the guys working " "They were doing their job,"
according to Johnson According to Srader, he noted
Beloney "leaning up against" a pole and asked what
Beloney was supposed to be doing Srader and Johnson
then walked over to Beloney Srader ordered Beloney to
continue palletizing Beloney pointed out that there were
only two pallets available, one on top of the other
Thereupon Srader ordered Beloney to "pick up that pallet,
put it in place and palletize " Beloney asked if Srader
wanted him to pick up the top pallet and put it in place
alone When Srader answered in the affirmative, Beloney
reminded him that they had talked about the safety of one
man handling a pallet by himself many times in safety
meetings and that it was too dangerous for one man
Srader reiterated his order Beloney asked Srader to show
him how, to which Srader answered, "No, I won't put my
hands on it I want you to handle it " Beloney refused on
the grounds that it was unsafe and might injure his hands
or his feet He asked for a meeting about it under the
contract About this time Jochin returned with the forklift
and said he would take the top pallet off Srader ordered
Jochin away At this point Andrews came into the group
and asked Beloney if he was not even going to try Beloney
was not Whereupon Andrews started towards the two
pallets As Andrews started to take hold of the pallet,
Srader ordered, "Leave it alone Let him do it " Thereupon
Andrews pulled the top pallet off 21 Srader then informed
Beloney that he was going to discharge Beloney for not
handling the pallet as ordered Beloney reiterated that he
thought this was something to be settled under the contract
clause regarding unsafe work and that he wanted a meeting
called for under the contract 22 Srader retorted, "Damn the
contract, I want you to do as I say " He departed saying
that he was going to call the business agent to come out to
Srader criticized only Beloney for his alleged failure to double load the
truck even though Johnson s testimony shows that Johnson allegedly gave
the instruction to double load while Beloney Jochin the forklift operator
and Isaac Guillory were all together Johnson s stated reason for the
selection of Beloney to criticize was that when he gave his alleged orders he
had been talking specifically to Beloney
21 There is a dispute as to how easily Andrews succeeded Beloney said
that it took three attempts Srader and Johnson indicated that Andrews did
it on his first attempt When asked if it took him three attempts Andrews
answered I don t think so
22 Srader and Andrews denied hearing Beloney say anything about
dangerous work or wanting a meeting under the contract However Srader
acknowledged that Beloney told hum that dragging the pallet off would hurt
him either in the hands or legs Johnson also denied hearing Beloney ask for
a meeting but strangely did hear Beloney mention something about the
the plant, that he was tired of having Beloney refuse
instructions
The testimony indicates that for one man alone to move
a pallet off another pallet was "unusual " but had been
done in the past "Usually" such pallets were removed by
the forklift except in instances when the forklift was
unavailable or could not be maneuvered into position, in
which case the pallet would be moved by two men
Johnson testified that he had seen one man move such a
pallet about 150 times Judging from all the rest of the
testimony Johnson exaggerated
Following this episode Johnson assigned Beloney the job
of washing a tank truck during which Srader criticized
Beloney for using too much solvent
Following another regular day at work on December 15,
Srader , after a morning consultation with Respondent's
headquarters in Houston about discharging Beloney,
discharged Beloney about 4 30 p in for having refused to
obey instructions the previous day Srader testified that he
called the Union again that day and that the president of
the Local promised to come out but failed to appear
On December 18 Beloney filed a grievance claiming that
his discharge had been in violation of article XI, sections 1
and 2 , 23 of the collective -bargaining agreement This
grievance contained two sentences referring to unfair labor
practices which read as follows
He [Srader ] also said he would discharge me
anyway because I was the Steward of the Job and
because I had talked to the Labor Board Men 24
I am charging the company with Violation Article
XI, Section I & II of this agreement, and unfair labor
practices
This grievance the Union took to arbitration By
agreement it was heard on March 19, 1971, before a single
impartial arbitrator, John P Owen, Dean, College of
Business Administration; University of Arkansas On April
19, 1971, the arbitrator issued his award denying the
grievance on the ground that the work ordered performed
on December 14 was not unsafe within the meaning of
article XI, section 2, of the agreement 25
Beloney also filed for unemployment compensation with
the Texas Employment Commission (TEC) After a
hearing on January 28, 1971, TEC Referee Alton A
Gentry concluded his decision as follows
I conclude that the weight of the evidence supports the
employer's position and the claimant's refusal to even
contract Johnson's admission thus confirms Beloney s testimony because
the only reason for Beloney s mentioning the contract at this time would be
to invoke article XI section 2 providing as follows
No employee shall be required to perform services that seriously
endanger his physical safety other than the normal hazards and
dangers of normal plant operations and his refusal to do such
abnormally dangerous work shall not warrant or justify discharge In
all such cases a conference between the foreman safety man and
Workmen s Committeeman or Committeemen shall be held to settle
the issue
23 Quoted supra
24 There is no reference to any such testimony in the award nor was any
such presented at the instant hearing
25 This award will be discussed in greater detail hereinafter
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attempt to perform the work assigned by the employer
constitutes misconduct connected with the work,
therefore, he is subject to disqualification under Section
5(a) of the [Texas Unemployment Compensation] Act
This decision was affirmed on appeal 26
B Conclusions
1 Award and TEC decisions
Before, at , and after the hearing herein Respondent has
voiced annoyance at having to defend its action of
December 15 in discharging Beloney on three separate
occasions first, before TEC, second, before the arbitrator,
and, lastly, before the Board
I can sympathize with Respondent's position, but I
cannot agree
Respondent 's motion to disimss Beloney's claim here
because of the alleged conclusiveness of the arbitration
award was denied by Trial Examiner Leff
At the opening of the instant hearing, in answer to my
inquiry, Respondent stated its position on the record as
follows
MR MARTIN Well, Mr Trial Examiner , it is our
contention, and we would now renew our Motion To
Dismiss, that same being as [that9] Mr Beloney
contended at this Arbitration Hearing as one of his
contentions , that the Company threatened him with
discharge because of his activities on behalf of the
Union, and although not considered as such in the
Arbitrator's Decision that contention was raised on
more than one occasion during the Arbitration Hear-
mg, itself, and although the Arbitrator did not speak to
it in his Decision we take the position that it was
properly raised , and was properly before the Arbitra-
tor
And that his considering it, and not mentioning it in
his Arbitration Decision infers that he did not give any
weight to it, although he did have it before him
In its brief Respondent now says
There is no contention on the part of counsel for the
General Counsel that the arbitration award (General
Counsel's Exhibit 1(i)) failed to meet the criteria
established in Spielberg Mfg Co, 112 NLRB 1080
(1955), that the proceedings were fair and regular, that
all parties agreed to be bound , and that the decision
was not repugnant to the purposes and policies of the
Act 27
Since its Spielberg decision , the Board has added
what might be considered a fourth criterion , namely,
that the issue involved in the unfair labor practice case
before the Board must have been presented to and
considered by the arbitrator Ford Motor Co, 131
NLRB 1462 (1961), Monsanto Chemical Co, 130
NLRB 1097 ( 1961) Here lies the rub Counsel for the
General Counsel contends that the issues presented
before the Trial Examiner were not presented or
26 In accordance with permission granted at the hearing , I hereby admit
into evidence , as Resp Exh 26 certified copies of the above TEC decisions
supplied by Respondent by letter dated June 21, 1971
27 An admission General Counsel may have had some qualms about
after hearing Business Agent Joynor s testimony on behalf of Respondent at
considered by the arbitrator The Respondent' s conten-
tion is that such issues were indeed raised before the
arbitrator, considered, and rejected, in part by implica-
tion, as evidenced by the manner in which the
administrator's decision was prepared It is respectfully
submitted that the Trial Examiner erred in excluding
testimony from the witnesses concerning the conten-
tions and issues raised before the administrator
[Emphasis supplied ]
After argument I indicated that I felt I should defer to
the award as far as it went-but no farther I agreed that
the award settled the issue under article XI, section 2, to
wit, that the work Beloney had been ordered to perform on
December 14 was not "unsafe" within the meaning of the
contract and that, therefore, Respondent had a "proper
cause" to discharge Beloney for his refusal to perform that
work I confirm that ruling here
In conformity with that ruling, I refused to permit
evidence from the General Counsel relating to the safety or
nonsafety of the work in question and also refused to
permit Respondent to produce testimony relating to the
issues raised and evidence presented to the arbitrator
Respondent excepted to my ruling on this latter point
But the fact is that the arbitrator carefully set forth the
evidence presented by each party in his statement as to the
positions of the parties there The award itself, therefore,
clearly presented the evidence produced by each party
This showed that much, but not all, of what might here be
called the unfair labor practice evidence was presented to
the arbitrator It was presented, in fact, by Respondent
-not by Beloney or the Union And it was presented by
Respondent for the purpose of proving that Beloney's
refusal on December 14 was not an isolated act of
"belligerence and defiance," to use Respondent's phraseol-
ogy, but was, on the contrary, "to establish a past pattern
of defiance and lack of commitment to duty on the part of
the Grievant," in the phraseology of the award 28 Hence it
is all too clear that, while much of the unfair labor
evidence did in fact come out during the arbitration, it was
introduced there on an issue which was within the
arbitrator's jurisdiction but which was completely separate
and distinct from the issue now before me, an issue over
which, incidentally, the arbitrator had no competence or
jurisdiction, as well as an issue upon which, admittedly, the
arbitrator made no decision in writing
Yet, because some unfair labor practice evidence did get
into the arbitration, albeit on a distinct and separate issue,
Respondent, even though candidly and correctly admitting
that the arbitrator carefully did not rule on the unfair labor
practice issue in words, still would have me hold that he
did rule on the unfair labor practice aspects of this case
"by implication" (i e, by failing to mention it in the award)
and, therefore, the whole issue now before me was
determined by the arbitrator "by implication "
For me to so hold as Respondent desires-even in the
light of the Board's recent split decision in Collyer Insulated
Wire, A Gulf and Western Systems Co, 192 NLRB No 150,
the instant hearing on the grounds that Beloney s representative at that
arbitration may well not have been completely in accord with the cause he
purported to espouse
28 The award indicated that the arbitrator was not altogether convinced
on this point by Respondent s evidence
GULF STATES ASPHALT CO
where the majority indicated a strong penchant for
deferring to arbitration, at least, on questions of contract
interpretation and enforcement-which incidentally my
ruling here does-would force me to disregard the
arbitrator's careful restriction of his award to the issue
under article XI, section 2, to wit, the safety of the work
ordered within the meaning of that contract clause
I have to believe that this restriction of the award was
both conscious and intentional on the arbitrator's part
This arbitrator's competence and jurisdiction is by contract
only On this point Respondent had negotiated and
executed an agreement containing a grievance and arbitra-
tion clause, which the arbitrator quotes at the beginning of
his award, and which provides in pertinent part
Article XIII, Section 4-The arbitrators shall not
have authority to alter, amend or change the terms and
provisions of the Agreement in any way, and their
decision shall be within the terms and provisions of this
Agreement The decision of the arbitrators within the
purview of their authority shall be final and binding on
the parties [Emphasis supplied ]
The arbitrator obviously interpreted this provision, as I
do, to mean that his authority extended only to a
determination of whether the work ordered was safe or
unsafe within the meaning of article XI, section 2, of the
agreement The careful phraseology of his award proves
that this arbitrator consciously and intentionally held his
award to issues "within the terms and provisions of this
Agreement" to which he was expressly limited by the
agreement which brought him, as an arbitrator, into
existence
I cannot, and will not, hold that the arbitrator exceeded
his contractual competence and jurisdiction by having
decided, "by implication," the unfair labor practice aspects
of this matter In the first place he studiously did not In
the second place such a holding would require me to
speculate on the subjective mental processes of the
arbitrator And in the third place, even if I did so hold, it
would do Respondent here no good for the simple reason
that, under the last sentence of the above-quoted article,
any such decision by the arbitrator would not be final and
29 On September 16 after the above section of the Decision had been
written, Respondents Motion for Trial Examiner to Take Admimstrative
Notice of the Collyer case cited supra reached me As I had already
considered the Collyer case this motion required no changes in the above
section of my Decision
However it might be well to comment briefly on Respondents motion
Respondent describes the Collyer case therein as
the Board s Decision that it will not assert jurisdiction in matters
where the facts present an alleged violation of the National Labor
Relations Act herein referred to as the Act as amended and also
present an alleged breach of a valid existing collective bargaining
agreement covering the parties involved that provides that the exclusive
method of settling said disputes arising thereunder shall be a final and
binding arbitration, and where the arbitrators decision concerning
such dispute is fair and regular and is not repugnant to the Act
[Emphasis supplied ]
If Respondent actually believes that by the Collyer decision the Board
ceded its statutory jurisdiction and responsibility to private arbitrators, I am
afraid that its judgment may have been unduly swayed either by its
enthusiasm for that project or by the generalized but ebullient prose which
flowed through the 68 pages of the Members mimeographed opinions The
rhetoric and the decision in Collyer are two different things Despite
Respondents obvious enthusiasm Congress and the courts might look
askance at such a complete ceding of authority to private individuals by a
949
binding on the parties Respondent negotiated and agreed
to these restrictions on the arbitrator's authority It must,
therefore, remain bound thereby even though, with a
favorable award, Respondent here seemingly would prefer
not to be Neither the Board nor I have authority "to alter,
amend or change the terms and provisions of the
Agreement" which would be necessary to satisfy Respon-
dent here
In short, the unfair labor practice issue presented in the
instant proceeding was not presented to the arbitrator, was
not decided by him, and, if it had been, would not be
binding on the parties under the terms of the grievance and
arbitration clause which Respondent negotiated and
executed
Less need be said regarding the decisions of the TEC as
those decisions consisted solely of a determination that
Beloney was disqualified for "misconduct" as that word is
interpreted under the Texas Unemployment Compensation
Act It is obvious from the decisions that "misconduct"
under that statute differs from misconduct under our Act
The TEC decisions are of no importance here
Unhappily for Respondent's "three bites at the apple"
argument, there have been three separate and distinct
issues growing out of Beloney's discharge (1) TEC
determined that Beloney was disqualified for compensa-
tion by reason of "misconduct" under the applicable Texas
statutes, (2) the arbitrator determined that the work
Beloney refused to do on December 14 was not "unsafe"
within the meaning of article XI, section 2, of the
collective-bargaining agreement and, therefore, Respon-
dent had "a proper cause" to discharge him, and (3) I now
have to determine if that "proper cause" was the sole cause
of Beloney's discharge or if Respondent was motivated in
discharging Beloney, in whole or in part, by his activities as
the union steward 29
2 The discharge of Beloney
So the arbitration award establishes that (a) The work
Beloney refused to perform on December 14, on the
grounds that it was unsafe, was not "unsafe work" within
the meaning of article XI, section 2, of the collective
Federal regulatory agency such as Respondent appears to think the Board
has done in Collyer
Respondent asks that I consider the Collyer decision as it relates to the
assertion of jurisdiction in the instant case in relation to the discharge of
Lesly W Beloney and insofar as the assertion of jurisdiction would permit a
party to a valid existing collective-bargaining agreement to ignore valid
contractual obligations by framing a dispute in statutory terms in order to
employ dual litigation of the controversy before the Board and before an
arbitrator which arises from one dispute with the same set of facts
What Respondent here proposes under the facts of this case, is nothing
more nor less than the repeal of the National Labor Relations Act thereby
stripping the employees of the protection of Sec 7 of the Act
Such repeal is accomplished by
1 the Board ceding jurisdiction under Collyer to a privately selected
arbitrator who
2 by the valid terms of the arbitration clause is restricted to deciding
matters within the terms and provisions of this Agreement
3 thereby completely eliminating any and all consideration of the
employees rights under the Act
While I agree with Respondent that it has a better chance to secure the
repeal of the Act through some such private maneuver than through
Congressional repeal I think that as a Trial Examiner of the Board I had
better wait upon Congressional action
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement and (b) therefore, Respondent had a "proper
cause" to discharge Beloney on December 15
That raises the next question What was it that motivated
Respondent to discharge Beloney on December 15?
(a) Was Respondent motivated, as it claims, solely by
Beloney's "defiant" refusal on December 14 as the
culminating episode in a "long past pattern of defiance and
belligerency", or
(b) Was Respondent motivated, as General Counsel
claims, in whole or in part, by Beloney's militant policing
of the collective-bargaining agreement as the union
steward 30
During the arbitration Respondent produced evidence as
to nine incidents involving Beloney occurring between
March and October 21, 1970, which Respondent claimed
proved its contention that Beloney had a "long past pattern
of defiance and belligerency" toward Respondent which
finally culminated in his refusal of December 14 and his
discharge the following day
In addition the award states Respondent's position there
as follows
The Company further contends that it harbored
no hostility toward the Grievant because he was a
Union steward but had, because of that fact, exercised
exaggerated restraint in face of the Grievant's contin-
ued belligerency Instead, the Company took the action
it did solely because of the Gnevant's attitude and
refusal to carry out instructions as an employee
[Emphasis supplied ]
A look at these nine incidents cited by Respondent as
proof of Beloney's "defiance and belligerency" shows that
in only three incidents, all three having been deliberately
provoked by Respondent, was Beloney involved exclusive-
ly in his capacity as an employee whereas in the remainder
of the cited instances of alleged "defiance and belhgeren-
cy" Beloney was involved in whole or in part in his
capacity as union steward
The inclusion on this list by Respondent of so many
instances where Beloney was involved either exclusively as
the union steward or, at least, in a dual steward-employee
capacity quite clearly negates Respondent's claim, as
stated in the award, that it "harbored no hostility toward
the Grievant because he was a Union steward "
Some matters not included in Respondent's list of these
nine episodes allegedly showing "defiance and belligeren-
cy" also tend to disprove Respondent's contention of
having "no hostility" towards Beloney because of his
activities as steward Among other such incidents Respon-
dent failed to mention (1) Mrs Bramble's March
suggestion that perhaps these "troubles" (grievances) could
be solved by substituting another steward in lieu of
Beloney, (2) Srader's similar statement on June 15
regarding "problems" and his suggestion of Orebo as a
capable steward to replace Beloney, and (3) Srader's
suggestion on September 8 that the Union elect a new
steward
An even more notable omission from Respondent's list,
of course, is that rejected grievance dated October 5
30 The arbitrators contractual authority under art XIII, sec 4 of the
collective bargaining agreement definitely includes the first issue noted but
just as definitely his contractual authority excludes this second point In
prepared, as Respondent well knew, by Beloney but
presented by employee Stevens
The facts here prove that from at least March to
September 8, Respondent's hostility towards grievances
and stewards went only to the extent of trying to stop the
filing of grievances, by one means or another, and to
replace Beloney as steward, as one such means
For a period of about a month after the September 8
grievance meeting, Respondent appeared to have solved its
problems and troubles over grievances Business Agent
Joynor was withdrawing previously filed grievances by
telephone Beloney had filed no new grievances
Then came the Stevens grievance of October 5 and the
grievance over the 16 hours' work in a period of 24 hours
With these events Respondent's attitude changed radi-
cally Andrews refused the Stevens grievance contemptu-
ously and physically Srader threw the other into the trash
can By thus refusing to accept grievances duly filed,
Respondent refused to bargain in violation of Section
8(a)(5) and (1) of the Act
Following the rejection of the October 5 grievance
Srader deliberately provoked and instigated two confronta-
tions with Beloney as an employee In each instance
Beloney was informed that he was being discharged for his
failure to obey instructions However, on the first occasion,
October 21, the discharge had to be rescinded because of
the company doctor's report that Beloney was in fact
injured On the second occasion, December 15, Srader has
made that discharge stick with the help of a favorable
arbitration award-so far
These last two confrontations were very similar In each
case Srader told Beloney that he was being discharged for
his failure to obey instructions In the episode of October
21 the order Beloney purportedly disobeyed, according to
Respondent, was to double load a truck The facts of that
episode proved beyond a peradventure of a doubt that this
alleged disobedience of orders was of complete unimpor-
tance and was used solely as a pretext in order to provide
an excuse to discharge Beloney If Beloney disobeyed
orders on this occasion, then there were two or three
employees in all who disobeyed the same order Yet
Beloney was the only one of the three who was discharged
-or threatened with discharge Obviously Respondent
had some reason other than the alleged "disobedience" for
wanting to get rid of Beloney at this time Johnson's stated
reason for the selection of Beloney for discharge was that,
when he gave his order to double load, if he did, to the
group of three, he, Johnson, was speaking "specifically to"
Beloney This specious reason deserves a prize for
ingenuity It seems quite clear that, after the disappoint-
ment of October 5, Srader wanted to stop "the troubles"
and "problems" of the grievances from arising again as
quickly as it could be arranged Hence get rid of Beloney,
the steward, who filed the grievances On October 21 the
doctor thwarted Srader
The episode of December 14 was equally provoked,
arranged, and deliberately instigated by Respondent
Johnson, who with Srader had been watching the work
fact, if the arbitrator had decided this second issue his award would not
have been binding on the parties as not being within the purview of their
authority
GULF STATES ASPHALT CO 951
Beloney was engaged in that morning, testified that "the
guys were doing their job " In fact every witness agreed
that Jochin on the forklift had just removed two pallets
which Beloney had palletized with 100-pound cartons
when Srader walked up and preemptorily ordered Beloney
to drag one pallet off the top of another and to get back to
palletizing Beloney expressed surprise at being asked to do
the job alone because it was a job ordinarily done by the
forklift or by two men When the order was repeated,
Beloney refused to do as ordered on the ground that the
job was unsafe and asked for a meeting on that question as
provided for in the contract Beloney knew the terms of
this contract better than Respondent Upon hearing this
Srader became adamant "Damn the contract, I want you
to do as I say " So, when the forklift returned prepared to
do its usual job of moving the top pallet off, Srader ordered
the forklift away When Andrews started to try to move the
top pallet himself, Srader ordered "Gene, leave it alone 31
Let him do it " As was the case of October 21, Srader was
not interested in getting the work done or he would have
permitted the forklift to perform its usual job Obviously
Srader was interested only in creating a case of apparent
disobedience as a "proper cause" to justify the discharge of
Beloney who had once again demanded a right the
employees had under the collective-bargaining agreement
In short Beloney was once again creating "troubles" and
"problems" to Respondent's annoyance For that he was
discharged by Respondent in violation of Section 8(a)(l)
and (3) of the Act
by discharging him on December 15, 1970, because of his
activities as the union plant steward in violation of Section
8(a)(1) and (3) of the Act, I will recommend that
Respondent offer him immediate and full reinstatement to
his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges and make him whole
for any loss of pay he may have suffered by reason of said
discrimination against him on and after December 15,
1970, by payment to him of a sum of money equal to that
which he would have earned from December 15, 1970, the
date of the discrimination against him, to the date of his
reinstatement less his net earnings during such period in
accordance with the formula set forth in F W Woolworth
Company, 90 NLRB 289, with interest thereon at 6 percent
per annum 32
Having found that Respondent has refused to bargain in
good faith with the Union in violation of Section 8(a)(5) of
the Act, I will order that Respondent, upon request,
bargain in good faith with the Union in regard to wages,
hours, working conditions, and grievances
Because of the type of the unfair labor practices engaged
in by Respondent, I sense an opposition by Respondent to
the policies of the Act in general and I deem it necessary to
order Respondent to cease and desist from in any manner
infringing on the rights guaranteed its employees in Section
7 of the Act
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that Respondent
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act
Having found that Respondent discriminated in regard
to the hire and tenure of employment of Lesly W Beloney
31 Could it have been that what was safe for Steward Beloney to do was
unsafe for his friend Gene9
32 During the hearing General Counsel requested that Beloney be
reimbursed for his loss of pay caused by Respondent s discrimination at the
rate he would have earned as a truckdriver instead of that rate which he was
paid as a laborer
One cannot help noting
(1) That Millers Casualty Insurance Company canceled the coverage on
both Beloney and driver Leroy Donald at the same time in August 1970 It
just so happens that Beloney and Donald were two of the three grievants
whose grievances caused the prior refusal to bargain case against Respon-
dent, and
(2) It was a Millers Insurance Group safety engineer who just by
coincidence in the words of the arbitration award happened to appear at
CONCLUSIONS OF LAW
1 Teamsters Freight and Tank Line Employees Local
Union No 920, is a labor organization within the meaning
of Section 2(5) of the Act
2 By discriminating in regard to the hire and tenure of
employment of Lesly W Beloney by discharging him on
December 15, 1970, because of his union activities as union
steward and other activities on behalf of the Union, and in
order to discourage such union membership and activities,
Respondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act
3 By refusing to accept grievances from the Union,
Respondent has refused to bargain in violation of Section
8(a)(5) of the Act
4 By so interfering with, restraining, and coercing its
employees in the rights guaranteed them in Section 7 of the
Act, Respondent has interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the
Act
Respondents plant on the afternoon of December 14, watched Andrews
pull one pallet off of another and, if Respondent's witnesses are to be
believed stated that that was not unsafe work-but if the Company had
this particular job performed frequently, he would suggest that a hook be
used
It thus appears that Respondent s insurance carrier the Millers Insurance
Group was being almost unduly cooperative in Respondents problems
with Beloney as the union steward
However no matter how suspicious these circumstances may appear to
be, Beloney s demotion from truckdriver to laborer is not alleged as an
unfair labor practice in the complaint and therefore cannot be found, in
this instance to be an unfair labor practice as that issue was not litigated
Hence reimbursement must be at the rate Beloney was being paid at the
time of his discharge
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
[Recommended Order omitted from publication ]
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
Under date of April 27, 1972, following the issuance of
my Decision on October 20, 1971, the Board issued its
Order Remanding Proceeding to Trial Examiner in the
above-entitled case which read in pertinent part as follows
Respondent, as part of its defense, contended that
the Board should defer to an arbitration award denying
Beloney's grievance with respect to the discharge In
support of this contention, Respondent, at the hearing
before the Trial Examiner attempted to present
testimony concerning the contentions which were
raised before the arbitrator and the evidence which was
presented to the arbitrator The Trial Examiner refused
to permit the parties to present such evidence The
Board finds that the Trial Examiner erred in this
respect
Upon consideration of the matter, the Board finds it
necessary to remand this proceeding to the Trial
Examiner for the purpose of affording the parties an
opportunity to present such evidence Accordingly,
It is hereby ordered that this proceeding be, and it
hereby is, remanded to Trial Examiner Thomas S
Wilson for the purpose of affording the parties an
opportunity to present evidence as to the contentions
raised before the arbitrator and as to the evidence
presented to the arbitrator
Pursuant to due notice, a hearing thereon was held
before me in Houston, Texas, on May 16, 1972 All parties
appeared at the hearing, were represented by counsel, and
were afforded full opportunity to be heard, to produce and
cross-examine witnesses, and to introduce evidence materi-
al and pertinent to the issues At the conclusion of the
hearing, General Counsel cited several cases in hen of oral
argument A brief was received from Respondent on May
26, 1972
1 Procedural matters
At the outset of the remand hearing, I informed
Respondent that, as the Board had ordered this remand
hearing in order to correct my alleged error in excluding
evidence relating to the arbitration hearing which Respon-
dent had desired to present at the original hearing, I
assumed that Respondent bore the burden both of going
forward and of proof
At the original hearing, I had mistakenly, as it developed,
understood both Respondent and Beloney had made tape
recordings of the entire arbitration proceeding
But, at the remand hearing, Respondent informed me
that Respondent had tapes of only a portion of the
arbitration proceeding, consisting in large measure of
Respondent's entire examination of Beloney These tapes
Respondent had had transcribed into a transcript consist-
ing of 44 pages
It was also acknowledged that all of the tapes of the
entire arbitration proceeding recorded by Beloney had
been offered to Respondent for transcription and that this
offer had been refused by Respondent
At the remand hearing, Respondent suggested, or
requested, that this Trial Examiner order General Counsel
to have the Beloney tapes transcribed This I refused to do
on the grounds that I had no such authority and that the
burden of going forward and of proof rested on Respon-
dent
Thereupon Respondent introduced, by stipulation, the
44 pages of transcript of the Respondent's tapes of the
examination of Beloney as referred to above Respondent
then rested without producing any further evidence, oral or
otherwise
Respondent rested without the production of any
evidence
2 The evidence
Thus, the only evidence Respondent presented at the
remand hearing was this 44-page transcription of the tapes
Respondent recorded of a portion of the arbitration which
consists of 41 pages of Respondent counsel 's examination
of grievant Beloney followed by 3 pages of part of the
examination of Beloney by AO Joynor, Beloney's
representative at the arbitration Even this is only a partial
transcript of that part of the arbitration because at several
rather important places the tapes became so unintelligible
as to be untranscribable These spots are indicated in the
transcript by asterisks
Even with these limitations the transcript is a rather
remarkable document It confirms every finding made in
the award , i e, so far, at least , as the transcript covers In
addition it confirms-and does not disprove-each and
every finding, under similar limitations, made in the Trial
Examiner 's Decision
And, even further, it contains an admission by Plant
Manager Srader, made during the October conveyor belt
incident , to the effect that he intended , and indeed had
been ordered by his superiors, to find some excuse, or
pretext , through which to discharge Beloney because of his
militant actions as the union steward-even as found in the
Trial Examiner's Decision
Parenthically , this 44-page partial transcript is also a
beautiful illustration as to why there is today such a clamor
emanating from certain sources for the Board to defer to
arbitration When one side before an arbitrator, who may
or may not have legal training , is represented by astute
counsel learned in the law and its technicalities while the
other side is represented by a layman, untrained in the law
and unaware of its technicalities , arbitration is strictly no
contest, particularly in a discharge case Contract interpre-
tation cases may be different It is remarkable how the
odds even up with the mere presence at a hearing of even a
young and relatively inexperienced General Counsel
For instance, it appears from Respondent's transcript
that Respondent 's counsel simply assumed, without objec-
tion, the right to the first examination of Beloney, thereby
taking complete control of the gnevant's and moving
party's case from him Beloney's representative was finally
permitted to examine Beloney thereafter and after the issue
GULF STATES ASPHALT CO 953
had been drawn to Respondent's satisfaction It was during
this first examination that Respondent brought out, this
time over objection, certain grievances which Beloney, as
steward, had filed on behalf of fellow employees, the very
evidence Respondent is now contending brought the unfair
labor practice into issue before the arbitrator to be decided
by him by "implication " The transcript confirms that all
this so-called unfair labor practice evidence was intro-
duced into the record by the Respondent and over the
objection of Beloney's representative there
This initial procedural aberration of allowing Respon-
dent's counsel the first examination promptly created
problems as shown on pages 6 and 7 of the transcript
where the following occurred
Q (By Respondent's counsel) Do you remember
one particular Saturday in March of last year that
Leroy Ball washed a truck for about 3 hours and you
contended that this laborer Ernest
Joynor I object to this line of questioning Sir
because it is irrelevant to the issue at hand on the
discharge
*
Arb (Arbitrator) Let's stick to the issue at hand
Q Mr Arbitrator, we are laying here a foundation
to show
Q Mr Beloney do you remember making a claim
that Mr Ernest Jeanard should be paid some addition-
al pay because Donald washed his truck
A I would like to ask you a question before I
answer anymore questions
Arb You may
the one which I will show you that was on the I
original of your name in which you are complain-
ing about the fact that a truck driver washed a
truck on a Saturday and you asking for pay for
one of the laborers Is that correct)
A I think you are phrasing it the wrong way You
say that I am complaining
Q Well, is your name Lesly Beloney, Stewart? [sic]
A Yes, that is right
Q Did you file this grievance
A That's right Yes, I filed the grievance because I
filed this on behalf of this man [Ernest Jeanard]
Unfortunately the unintelligibility of Respondent's tapes
prevent us from knowing exactly the reasons behind
Joynor's objection as well as what "foundation" Respon-
dent counsel stated that he was attempting to lay The
reason for the objection appears obvious because the
Jeanard grievance was the first mention in this transcript of
Beloney's activities as union steward Fortunately the
arbitrator in his award described this "foundation"
Respondent's counsel claimed at that time to be laying as
"to establish a past pattern of defiance and lack of
commitment to duty on the part of the grievant "
It is clear from the arbitrator's immediate comment,
"Let's stick to the issue at hand" that he, like Joynor,
considered the only issue involved in the arbitration to be
the contract interpretation of "abnormally dangerous
work "
It is also clear from Respondent counsel's failure to call
attention to article VII, section X[the so-called nondiscrim-
ination clause] at that point that he also did not then
consider that article to be relevant to the arbitration That
article only became relevant to Respondent after the
issuance of the Decision herein as exemplified by the fact
that Respondent's first mention of it occurred on page 6 of
Respondent's latest brief It is clear, at least, that
Respondent did not see fit to call it to the arbitrator's
attention Hence the arbitrator was not advised that any
unfair labor practice issue was before him for decision
Thereafter, on page 8 of the transcript, Respondent's
counsel requested that the Jeanard grievance "be marked
and received into evidence as Company No 7 " The
arbitrator ruled, "So entered with Mr Joynor's objec-
tions
This ruling is intelligible only in the light of the
arbitrator's understanding of what foundation he under-
stood Respondent's counsel to be attempting to lay
Otherwise the ruling is completely unintelligible
Thereafter, Respondent's counsel succeeded in introduc-
ing, over objection, certain other of the grievances which
Beloney had filed, as steward, on behalf of fellow
employees under identical rulings
Thus was the so-called unfair labor practice evidence
presented at the arbitration It was all, so far as Respon-
dent's transcript is concerned, presented by Respondent
-not by Beloney or his representative-over Beloney's
objection for a stated separate and distinct purpose other
than putting the unfair labor practice case at issue before
the arbitrator and was so understood by the parties Here
again the transcript corroborates the award
Hence, Respondent's transcript corroborates the findings
made in both the award and the TXD and disproves
nothing in either document
Respondent's transcript does nothing to disprove the
arbitrator's understanding of the "foundation" upon which
he permitted the introduction by Respondent of the so-
called unfair labor practice evidence However, it is also
clear that Respondent now has completely changed its
position and is now proclaiming that the evidence was
produced to put the unfair labor practice at issue before
the arbitrator Respondent obviously is now attempting to
play a whole new ball game Either that or it misled both
the arbitrator and Beloney This smacks of entrapment of
both 2
Thus the award, and the transcript, prove that the
arbitrator never considered, or understood, that any unfair
labor practice issue was before him and, therefore, did not
decide that unfair labor practice issue by "implication" or
1 Obviously there is another hiatus here but no asterisks clairvoyant to have accomplished that because the Collyer case implications
2 I certainly do not intend to accuse Respondent of deliberately of which it is now trying to take advantage, did not issue until long after the
attempting to entrap the parties because Respondent would have had to be arbitration
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise He decided the contract interpretation issue
which was before him and carefully nothing else
One thing in Respondent's most recent brief requires
mention On page 8 of this brief, Respondent argues
Exhibit "A" [the transcript] attached to Respondent's
Exhibit No 27, clearly establishes that Beloney phrased
testimony before the arbitrator in an attempt to
substantiate his allegations contained in his grievance
Specially, Beloney testified on page 28 of Exhibit
"A" as follows
I was standing up there massaging my legs, when J V
[Srader] did most of his talking about calling me yellow
and he was going to fire me because of my activities in
the Union and he had been told he had orders to get rid
of me regardless-it was dust a matter of time but he
had to get rid of me [Emphasis supplied ]
Contrary to Respondent's accusation that Beloney
"phrased testimony," page 28 of the transcript discloses
that Respondent asked four separate times for Beloney to
tell him exactly what Srader had to say on this occasion
This Beloney did, at Respondent's request, in the answer
quoted above Beloney was not, as Respondent claims,
"phrasing" his testimony but quoting Srader
Indeed Srader's statement on this occasion in October
constitutes an admission of Respondent's purpose and also
confirms the finding in the Trial Examiner's Decision
3 Conclusions
a The facts
Thus, this 44-page transcript of the arbitration proceed-
ing put in evidence by Respondent at the remand hearing
serves only to confirm the findings made in my original
Decision
1 That Respondent introduced whatever unfair labor
practice evidence was presented at the arbitration for a
completely separate and distinct purpose than to place the
unfair labor practice aspects of the case before the
arbitrator for decision
2 That nobody at the arbitration proceeding, including
Respondent, intended to try the unfair labor practice case
at the arbitration
3 That, in fact, as the award proved, the arbitrator
decided only the contract interpretation portion of the
case, to wit, whether the work ordered was safe or unsafe
within the meaning of the contract, and hence the
arbitrator did not decide the unfair labor practice case by
"implication" or otherwise
Consequently the introduction of this evidence by
Respondent served only to corroborate and strengthen the
findings of fact made in relation to the arbitration in my
original Decision and requires no change in any of those
findings of fact
b The law
During the 6 months that my Decision has been awaiting
Board action prior to the issuance of its remand order on
April 27, 1972, the Board issued an Order on a Decision by
Trial Examiner Miller which, incidentally issued the very
same day as my Decision in the instant case, in Airco
Industrial Gases-Pacific, a Division of Air Reduction
Company, Inc, 195 NLRB No 120, which may be of
interest here
In Airco, Trial Examiner Miller had refused to defer to
an arbitrator's award in his case which held that Cupples,
the dischargee, had been discharged by his employer for
negligence and, therefore, for good cause In the instant
case , I deferred to the arbitrator's award so far as it went,
to wit, that the work Beloney refused to perform was safe
work within the meaning of the contract and that,
therefore, Respondent had "a good cause" to discharge
Beloney
In Airco the facts showed that the Respondent there had
asked one question during the arbitration as to whether a
supervisor had been "out to get" the dischargee In the
instant case, Respondent had asked a few questions about
a few of the grievances which Beloney, as steward, had
filed on behalf of others This was over the objection of
Beloney's representative at the arbitration and with the
arbitrator's admonition, "Let's stick to the issue at hand "
In Airco a Board majority, consisting of Members
Fanning and Jenkins, over the dissent of Member
Kennedy, decided that Trial Examiner Miller had been
correct and that the arbitration had not decided the unfair
labor practice case in regard to Cupples by "implication"
or otherwise Thus, the Airco decision appears dispositive
of the instant contention by Respondent that Beloney's
unfair labor practice case had been decided by "implica-
tion," even though Respondent acknowledged that the
arbitrator in the instant case had carefully not decided that
issue in words
To adopt Member Kennedy's theories expressed in Airco
that any unfair labor practice question asked during an
arbitration brings the unfair labor practice case into
consideration for decision, intentionally or otherwise, by
the arbitrator or his res judicata theory that, if the grievant
elects not to try the unfair labor practice case before the
arbitrator, the grievant should have and was negligent in
not doing so, serves only to entrap the unwary employee,
without legal training or experience, into abandoning his
rights under the Act where the Board is supposed to have
"exclusive jurisdiction "
In the instant case, the evidence is conclusive that neither
the arbitrator nor the grievant intended, or did, try or
decide the unfair labor practice issue before me In fact, if
the tape had not become unintelligible when Respondent
counsel sought to explain the "foundation" he was
attempting to lay, I no doubt could safely say, judging
from the arbitrator's description of why that evidence was
presented and from the statement in Respondent's original
brief to me on the same point, that none of the parties to
the arbitration had any idea or intent during the arbitra-
tion to try the instant unfair labor practice case
Accordingly, as the new evidence presented at the
remand hearing requires not one jot or tittle of change in
the findings of fact or in the law as found in my Decision, I
here recommend that the Trial Examiner's Decision in this
case be affirmed in toto forthwith