Gutmacher, Marty, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1983

267 N.L.R.B. 528 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marty Gutmacher, Inc. and Carmine Bianco. Case
2-CA- 1 8489
26 August 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On 30 June 1982 Administrative Law Judge
James F. Morton issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed an answering brief to the General
Counsel's exceptions and brief in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I Member Hunter agrees with the result here for the reasons stated in
his dissent in Professional Porter & Window Cleaning Co., 263 NLRB 136
(1982).
a Member Jenkins does not join the majority in finding that deferral to
the arbitral award is appropriate. Although the arbitrator had the statuto-
ry issues of this matter before him, it does not appear that he fully con-
sidered them in reaching his decision that Bianco was discharged for
cause and not because of his protected concerted activities. However,
Member Jenkins agrees that the complaint should be dismissed in its en-
tirety because, on the merits, the evidence reveals that the General Coun-
sel failed to establish a prima facie case that Bianco was discharged for
discriminatory reasons. In his view, Bianco's statements of 16 November
1981 concerning his layoff as well as his threats with respect to the Re-
spondent's president were personal in nature and unrelated to his shop
steward responsibilities.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge: Based
on an unfair labor practice charge filed on December 12,
1981, by an individual, Carmine Bianco, a complaint
issued on January 28, 1982, against Marty Gutmacher,
Inc. (herein called Respondent). The complaint alleges
that Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (herein called
the Act), by having discharged Carmine Bianco from its
267 NLRB No. 87
employ on December 14, 1981, because of his activities
on behalf of Amalgamated Ladies Garment Cutters
Union, Local 10, International Ladies' Garment Work-
ers' Union, AFL-CIO (herein called the Union).
Respondent filed an answer to the complaint which
placed in issue the alleged unlawful reason for Bianco's
discharge and which asserted as a separate defense that
the complaint should be dismissed on the ground that the
Board should defer to an arbitration award which upheld
Respondent's right to discharge Bianco. The General
Counsel contends that the arbitrator, in issuing that
award, did not consider the issue set out in the complaint
in the instant case; i.e., the alleged violation of Section
8(a)(1) and (3) of the Act. In the alternative, the General
Counsel contends that deferral to the award is not war-
ranted on the ground that the award is not consonant
with the policies of the Act.
Respondent, in its answer to the complaint, set out as
additional separate defenses, various factual assertions to
support the nondiscriminatory reason it has proferred for
its discharge. In essence, Respondent asserts that Bianco
was guilty of insubordinate behavior on November 16,
1981, and that that incident, when taken in context with
prior arbitration awards adverse to him and with his
overall unsatisfactory work history, was a lawful basis
for his discharge.
The hearing was held before me on April 12 and 13,
1982, in New York, New York.
Upon the entire record in this case, including my ob-
servation of the demeanor of the witnesses, and after due
consideration of the briefs filed by the General Counsel
and by Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION AND THE UNION'S STATUS
Based on the pleadings and the stipulations received at
the hearing, I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor orga-
nization as defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR I.ABOR PRACTICE
A. Background
Respondent manufactures ladies sportswear in New
York, New York. It has been a member of the National
Association of Blouse Manufacturers, Inc. (herein called
the Association), which negotiates and administers col-
lective-bargaining agreements on behalf of its employer-
members. The Association and the Union have been par-
ties to successive collective-bargaining agreements, each
of which has named an individual as the impartial chair-
man to hear and decide disputes thereunder. The current
contract covers, inter alia, the approximately six cutters
employed by Respondent.
The Charging Party in this case, Bianco, began work-
ing for Respondent in early 1974 as a cutter. He has been
a member of the Union for about 20 years. He had been
discharged in September 1975 by Respondent. After a
hearing thereon before the impartial chairman as then
528
MARTY GUTMACHER. INC.
named in the applicable contract, an award issued finding
that the reasons given by Respondent for Bianco's dis-
charge then "were substantially correct but that the pen-
alty of discharge was too severe." Bianco's reinstatement
without backpay was ordered and he was placed on pro-
bation; the terms therefor were that there was to be no
drinking of alcohol at work, no racetrack sheets brought
to work, that Bianco is not to engage in outside business
during working hours and that he must not be insubordi-
nate. Bianco was then reinstated.
In mid-1976 Bianco was again discharged, that time on
the ground that he had cut goods improperly. Another
arbitration hearing was held. On August 23, 1976, the
then impartial chairman issued his award thereon which
recited that Bianco had been discharged for cause, in
view of the prior award and on the facts presented at the
hearing in that proceeding. That award, however, fur-
ther noted that Respondent had "consented to give
[Bianco] another chance." On that basis, Bianco was
again reinstated without backpay "with the further un-
derstanding that additional disciplinary difficulties in the
future will subject him to summary dismissal."
On November 29, 1977, Respondent's production man-
ager wrote to the Association to notify it that Bianco
had been discharged that day for having caused "a dis-
turbance." His letter related that Bianco "was boisterous
in asserting that he was entitled to backpay as work was
being given to [Respondent's] regular contractors," as
Bianco had said "he would complain to the Union and
get this place," as Bianco had made allegations of unfair
treatment and underhanded dealings, as Bianco had
stated "he would go to the Human Rights Commission"
and as "he proceeded with slanderous and defamatory
statements about [Respondent] and its production manag-
er." The Union's representative and Bianco met with Re-
spondent's officials on December 1, 1977. Bianco was re-
instated that day after having signed the following state-
ment:
I, Carmine Bianco, affirm that the following is a
true statement of the facts:
Marty Gutmacher Inc. forgives Mr. Carmine
Bianco for being disturbingly insubordinate to their
production manager, Mr. Alan Baruch on Tuesday,
November 29, 1977. Mr. Carmine Bianco is hereby
re-instated as an employee of Marty Gutmacher
Inc.
Mr. Carmine Bianco is signing this statement of
his own free will and against the advice of his busi-
ness agent, Mr. Edward Pastel.
The next 3 years passed without incident insofar as
Bianco's work history was concerned. In late 1980 and in
the spring of 1981, Respondent received several letters
from outside firms which complained of poor workman-
ship. In July 1981, Respondent's president, Martin Gut-
macher, and Dick Leone, a representative of the Union,
walked through Respondent's cutting shop. Gutmacher
told the cutters that he was getting too many complaints
about the cutting. Gutmacher also said to Leone that he
wanted to "bring [Bianco] up on charges for taking time
off." Bianco told Leone that he took time off as he had it
coming to him as a vacation. According to Bianco, Gut-
macher then told him that he should keep "his nose
clean." Bianco testified that he told Gutmacher that he
would get no trouble from him (Bianco) as long as he,
Gutmacher, "stick[s] to the contract." According to
Bianco, Gutmacher responded, "Fuck you and the con-
tract." Gutmacher denies making any such remark. I
credit Gutmacher's denial as there is no firm evidence of
any contract violations by Respondent then or griev-
ances thereon' and as Leone was not offered as a wit-
ness to corroborate Bianco's version.
On July 28, 1981, Gutmacher wrote the Association's
manager to arrange to schedule a hearing before the im-
partial chairman as early as possible. In that letter he also
wrote that he was complaining about Bianco as "a con-
stant disruptive factor in the cutting room as well as a
costly influence due to his continued mistakes .... [and
that Respondent] can no longer condone his poor work-
manship and belligerent attitude." The Association's
manager then requested the impartial chairman issue a
notice of hearing. On August 3, 1981, a notice issued
scheduling a hearing for August 12, 1981, in the matter
of "the discharge of Bianco." It appears that Bianco had
not been in fact discharged but that Respondent was
seeking an award to authorize it to discharge Bianco.
There was no hearing held on August 12, 1981. A credi-
bility issue was raised as to why no hearing was held.
The General Counsel contends that the case that had
been scheduled to be heard on August 12, 1981, by the
impartial chairman was settled informally and thus re-
solved. Respondent asserts that the merits of that case
were in fact heard by the impartial chairman in Decem-
ber 1981, in conjunction with later events. The General
Counsel's witness respecting that credibility issue was the
Union's attorney who testified simply that in early
August 1981 he received a message from the office of
the impartial chairman that the August 12 hearing was
canceled as the case had been settled. The Association's
manager testified that the impartial chairman held the ad-
journed hearing on December 3, 1981. The award which
issued after the December 3, 1981, hearing recites that it
was held "[p]ursuant to a letter dated November 18,
1981"; the award makes no reference to the letter of July
28, 1981, discussed above or to any transmittal of that
letter to the impartial chairman by the Association's
manager, also as related above. I credit the account of
the Union's attorney and thus find that the matters
which gave rise to Respondent's seeking to discharge
Bianco in late July 1981 were resolved amicably before
the August 12, 1981, hearing scheduled by the impartial
chairman and those matters were not litgated or consid-
ered at the December 3, 1981, hearing.
Note that, in a subsequent arbitration award, the one discussed in
detail in this case, the impartial chairman observed that "Bianco is re-
garded as a troublemaker because he made persistent inquiries and objec-
tions to [Respondent's] operations." That observation appears to refer to
matters that occurred after September 1, 1981, when Bianco became shop
steward.
529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Discharge of Bianco
The General Counsel contends that Bianco was dis-
charged on December 14, 1981, in violation of Section
8(a)(1) and (3) of the Act because he had protested Re-
spondent's laying him and all the other cutters off at a
time when the Union was taking Respondent to arbitra-
tion for alleged improper subcontracting of unit work.
Respondent asserts that it discharged Bianco lawfully as
it acted after the impartial chairman held a hearing and
ruled that Respondent may discharge Bianco for cause.
On September 1, 1981, Bianco became shop steward of
the cutters in Respondent's employ. His duties as stew-
ard were to act as a conduit between the unit employees
and the Union's delegates; a steward is not authorized to
negotiate directly with Respondent's officials.
In late October or early November 1981 (all dates
hereafter are for 1981 unless specified otherwise), the
Union sought arbitration on a claim by it that Respond-
ent was violating the collective-bargaining agreement by
subcontracting unit work. Bianco, as the cutters' shop
steward, met with the Union's attorney in early Novem-
ber to discuss that matter.
On November 16, Respondent's production manager,
Arthur Friedman. held a meeting of the six cutters em-
ployed by Respondent and informed them that, because
of business conditions, they were being laid off as of the
end of that day and for a period of about 3 weeks. All
the cutters returned to their respective tables without
comment.
Bianco testified that, as Friedman was leaving, he
(Bianco) leaned across his table, and told Friedman that
"Marty has some balls laying the men off before a holi-
day." The reference to "Marty" was to Respondent's
president; the event occurred just before Thanksgiving
Day.
Friedman testified that shortly after he made the layoff
announcement on November 16 and after the cutters re-
turned to their tables, Bianco approached him and said,
"You know Marty's got some fucking nerve, laying me
off at this time. . .if he thinks that he's going to jeopard-
ize my livelihood because he's got all kinds of fucking
money and he can sit around and do whatever the hell
he likes, he's not going to be able to do it because I got
facts and records and I'll make sure that I create a hard
time for him. Friedman testified that he then told Bianco
he was "threatening Marty" and that he would report
that to Respondent's president. According to Friedman,
Bianco then told him to go back and tell Marty because
he, Bianco, has "all the records to prove it."
I credit Friedman's account over Bianco's as it was
corroborated in substance by Respondent's other wit-
nesses and, more significantly, by Bianco's testimony
given before the impartial chairman as recounted by the
Union's attorney in that case, when he testified before
me.2 Most significantly, Friedman's account was credited
by the impartial chairman, as discussed in detail below.
2 He testified that Bianco testified before the impartial chairman that
he, Bianco, had told Friedman that he could not layoff the cutters while
contracting out work and that he, Bianco, "will pursue this."
Friedman reported the incident to Respondent's presi-
dent when he returned to the office later on the after-
noon of November 16. Respondent's president, Martin
Gutmacher, immediately telephoned the Association's
manager and instructed him to start proceedings to have
Bianco dismissed. In turn, the Association's manager
wrote to the impartial chairman on November 17 for a
hearing "to discuss the proposed discharge of Mr.
Bianco" and he observed in that letter that Bianco "in
the most recent of his many outbursts . . . created a dis-
turbance, harrassed his supervisors and made direct
threats in regard to Mr. Gutmacher."
Bianco was discharged on December 14 as authorized
by the December 7 arbitration award discussed below.
C. The Arbitration Proceeding
A hearing had been scheduled for November 18 on the
Union's claim that Respondent had improperly subcon-
tracted cutting work. On November 17 the impartial
chairman adjourned that hearing to November 24. On
November 19, he issued a Notice of Hearing in the
Bianco discharge matter, to be held on December 3. On
November 24, he met with the parties on the subcon-
tracting grievance and it was agreed that, on December
3, he would hear the subcontracting case right after the
Bianco case concluded that day.
The Union's attorney testified before me as to the
events at the arbitration hearing on December 3, con-
cerning Bianco's discharge. His account was uncontro-
verted and I accept it. It is summarized as follows. No
transcript was made of the arbitration hearing. The hear-
ing lasted about an hour. Counsel for Respondent made a
detailed opening presentation to the impartial chairman.
Copies of the prior awards, discussed earlier herein, were
given to the impartial chairman together with customer
complaint letters, received solely "for background." Re-
spondent then called Friedman as a witness who testified
that Bianco told him after the layoff announcement on
November 16 that he had records to show that Respond-
ent has no right "to do this," a reference to the layoff
announcement. Friedman further stated at the arbitration
hearing that "Bianco created an underlying current
among the cutters against [Respondent]" and that Bianco
"brings up incorrect charges against [Respondent] as a
form of harrassment."
The next witness at the arbitration hearing was the
cutter foreman who testified then that, after the layoff
announcement was made on November 6, Bianco ap-
proached Friedman. He further testified then that "Bian-
co's protest was to the effect that he can't get away with
this with all his fucking money, there's no way he can
get away with this, I'll fix him." The cutter foreman also
told the impartial chairman that Bianco was a "shit-stir-
rer" who "gets involved with things in the firm that are
none of his business."
The last witness called by Respondent in the arbitra-
tion hearing was its president, Martin Gutmacher, who
was asked in a general way why Bianco was discharged.
Gutmacher spent the next 5 or 10 minutes responding by
"essentially setting forth [Respondent's] defense in con-
nection with the subcontracting arbitration matter which
530
MARTY GUTMACHER, INC.
was scheduled to be heard later that day." On cross-ex-
amination at the arbitration case, Gutmacher answered in
the affirmative when asked that, notwithstanding any
other problem he may have had with Bianco, "the com-
plaints about subcontracting are the straw that broke the
camel's back and that's why we're here on this discharge
case." At that point, Respondent's counsel objected to
the Impartial Chairman that that was not what Gut-
macher meant. Thereupon, Gutmacher stated to the im-
partial chairman that that was not what he meant.
At the conclusion of Respondent's case before the im-
partial chairman on December 3, the Union's attorney
"indicated that it was the [Union's] position that there
was no just cause for discharge . . . [and] that [Bianco's]
activities were solely that of a shop chairperson . . .
[who has] a legal right [under Federal law] to protest
layoffs." Bianco then testified that he protested the lay-
offs on November 16 by saying to Friedman in sub-
stance, "You can't lay us off, you're contracting at the
same time and it's a violation." Bianco also said in sub-
stance that he will pursue this.
On December 7, the impartial chairman issued the
award as to Bianco's case.3 It is set out below:
Pursuant to a letter dated November 18, 1981
from the National Association of Blouse Manufac-
turers, Inc., of which the Employer is a member, a
hearing was held in the above matter on due and
sufficient notice in accordance with the provisions
for arbitration in the collective bargaining agree-
ment between the Union and the Association.
In this proceeding, the Employer seeks a determi-
nation that it is entitled to discharge for cause its
employee, Carmine Bianco.
Bianco, a cutter employed for about seven years,
has had an eventful career with the Employer. He
was first discharged on September 16, 1975 and re-
instated without backpay and on probation by an
Award issued by my predecessor once removed.
The terms of the probation indicate that the Impar-
tial Chairman found that Bianco had engaged in
several types of serious misconduct.
He was again discharged in 1976. My immediate
predecessor found the discharge to be for good
cause. However, in his Award, dated August 23,
1976, issued with the consent of the Employer, he
directed that Bianco be reinstated without backpay
"with the understanding that further disciplinary
difficulties will subject him to summary dismissal."
Despite the latter Award, the Employer "for-
gave" Bianco "for being disturbingly insubordinate
to their [sic] production manager" [this quotation is
an excerpt from a statement signed by Bianco] and
reinstated him as an employee on December 1,
1977.
There is no record of any further disciplinary
problems concerning Bianco. However, in the past
year, the Employer has received several complaints
from its contractors concerning the quality of cut-
3 He also issued a separate award as to the subcontracting case, heard
also on December 3 The award in that case was for the most part in
Respondent's favor.
ting on certain lots, apparently done by Bianco. [Al-
though the Union was notified of these complaints,
there was no protest by either the Union or Bianco
that he was not at fault.] The incident which preci-
pitated the discharge occurred on or about Novem-
ber 16, 1981. The production manager told the as-
sembled cutters that they would be laid off for two
or three weeks because of a lack of work. After the
other cutters had dispersed from this meeting,
Bianco protested the layoff. According to the pro-
duction manager, Bianco, who was the Union shop
steward, [it appears that Bianco was acting on his
own behalf and not as Shop Steward. None of the
other cutters voiced objections to the layoff] stated
vehemently and profanely that he would not accept
the layoff and threatened to cause problems for the
Employer.
This testimony was substantially confirmed by
the cutting room manager who testified that Bian-
co's threats included the words "I'll fix him."
Bianco admits to voicing a protest concerning the
layoff and to making an aspersive comment about
the principal of the Employer. He denies having
made any threats.
I credit the testimony of the Employer's wit-
nesses in this regard.
Although the Employer is obviously anxious to
terminate Bianco's employment for reasons unrelat-
ed to the events of November 16, 1981, (Bianco is
regarded as a troublemaker because he made per-
sistent inquiries and objections to the Employer's
operations. It is not clear whether in doing so,
Bianco overstepped or abused his authority as a
Shop Steward.), I conclude that such events war-
rant discharge.
It is clear that once again Bianco's actions have
taken him beyond the bounds of propriety. As an
isolated incident, it may not appear to be a severe
breach of discipline. However, given his past histo-
ry and multiple opportunities for reform and warn-
ings as to the consequences of future misconduct, I
cannot conclude that there is reasonable possibility
of a satisfactory employment relationship in the
future.
AWARD
The Employer, MARTY GUTMACHER, INC.,
may discharge its employee, Carmine Bianco, for
cause.
In the hearing held before me, the testimony was clear
that the use of expletives is not uncommon in Respond-
ent's cutting room.
D. Analysis
The Board has held that the desirable objective of en-
couraging the voluntary settlement of labor disputes will
best be served by its deferral to an arbitration award
where the proceedings appear to have been fair and reg-
ular, all parties had agreed to be bound, and the decision
of the arbitration panel is not clearly repugnant to the
531
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes and policies of the Act.4 That does not mean
that the Board would necessarily decide the unfair labor
practice issue as the arbitration panel did.5 The Board
has also held that it will no longer honor the results of
an arbitration proceeding under Spielberg unless the
unfair labor practices issue before the Board was both
presented to and considered by the arbitrator. 6
The General Counsel concedes that, in the instant
case, the proceedings before the impartial chairman on
December 3 were fair and regular, that the Union pre-
sented to him the unfair labor practice issue raised now
in the instant case, and that all parties had agreed to be
bound by the award. The General Counsel asserts that I
should not defer to the award either on the ground that
the award indicates that the impartial chairman did not
consider the unfair labor practice issue or on the ground
that his award is clearly repugnant to the purposes and
policies of the Act.
Respecting the first contention, the General Counsel
notes that the impartial chairman, in his award, has made
no clear reference to the unfair labor practice issue de-
spite the fact that the Union's counsel had unequivocally
asserted, as Bianco's principal defense, that Bianco was
protected by Federal law when he spoke to Friedman on
November 16. A reading of the award shows that the
impartial chairman declined to make express findings re-
specting the unfair labor practice issue. In that regard,
the award refers in only an oblique manner to the ques-
tion as to whether Bianco's actions were concerted ac-
tions protected under the Act. Thus, the award does not
set forth a finding that those actions were or were not so
protected but it simply notes that "[i]t appears that
Bianco was acting on his own behalf and not as Shop
Steward" and again that "[i]t is not clear" whether
Bianco was acting as Shop Steward when he made "per-
sistent inquiries and objections to [Respondent's] oper-
ations." The award by its terms appears to decide the
merits of Bianco's case on a contractual principle-
whether a harmonious employment relationship can rea-
sonably be expected to exist were Bianco not discharged.
The Board decisions do not appear to set out a uniform
approach as to whether or not an arbitrator must articu-
late a rationale which clearly indicates that the statutory
criteria were evaluated. In one case, the Board set aside
an arbitration award because the arbitrator never consid-
ered the unfair labor practice issue inasmuch as "he did
not apply any statutory measure to his analysis in that
regard." 7 More recently, however, the Board has asked
itself whether an arbitrator must actually discuss the
unfair labor practice or is it sufficient that he or she con-
sidered all of the evidence relevant to the unfair labor
practice in determining whether a discharge was lawful
under a contract. 8 It answered that question by then
Spielberg Mfg. Co., 112 NLRB 1080 (1955).
5Ibid.
I Suburban Motor Freight, 247 NLRB 146 (1980) See also Raytheon
Co., 140 NLRB 833 (1963), enforcement denied 326 F.2d 471 (Ist Cir.
1964).
7 Ad Art, Inc., 238 NLRB 1124, 1132 (1978) enfd. 645 F.2d 669 (9th
Cir. 1981). In affirming, the court stated that the arbitrator's decision
must specifically deal with the statutory issue. To the same effect, see
Clara Barton Terrace Convalescent Center, 225 NL RB 1028 (1976).
8 Atlantic Steel Co., 245 NLRB 814 (1979).
saying that "(a) review of the decisions shows that, while
it may be preferable for the arbitrator to pass on the
unfair labor practice directly, the Board has generally
not required that he or she do so. Rather, it is necessary
only that the arbitrator has considered all of the evi-
dence relevant to the unfair labor practice in reaching
his or her conclusion." On those premises and as the un-
controverted testimony given before me by the attorney
who represented Bianco at the arbitration shows, the im-
partial chairman had heard all the relevant evidence on
the unfair labor practice issue and, further, as he dis-
cussed the relevant considerations in his award, I find
that the impartial chairman considered the unfair labor
practice matter.9 I turn now to the General Counsel's al-
ternate contention-that I should not defer to the award
issued on December 7 as it is, in the General Counsel's
view, repugnant to the purposes and policies of the Act.
Very recently, the Board has said that, in resolving that
issue, the test to be applied is not whether the Board
would have reached the same result but whether the
award is palpably wrong as a matter of law. 0 In a case
which very closely paralleled the events of November 16
in the instant case, the Board declined to defer to an ar-
bitrator's ruling upholding an employee's discharge. I It
would thus appear that Bianco's comments on November
16 were clearly protected by the Act and that, as Re-
spondent's president had conceded at one point in the ar-
bitration hearing that the subcontracting complaints were
in effect the straw that broke the camel's back, the im-
partial chairman was obliged to find that Bianco was
being deprived of his statutory rights.'2 Even the very
comment by Bianco on November 16 appears to be
clearly protected, notwithstanding his use of expletives
or the fact that he did not consult with the other cutters
before making his comment.a I note however that the
Board has considered another case which, in good part,
was based on facts similar to those in the instant case and
in which the Board deferred to the arbitration award up-
holding the alleged discriminatee's discharge.' 4 A care-
ful reading of that case indicates that it strongly supports
major aspects of the award issued on December 7 by the
impartial chairman in the instant case. The employee in
the cited case, like Bianco, had a poor work history and
I See also Kansas City Star Co., 236 NLRB 866 (1978). Further, in Bay
Shipbuilding Corp, 251 NLRB 809, 810 (1980), the Board held that "all
that is necessary for deferral" is that the arbitrator make "factual findings
in the course of resolving the contractual issue, which resolve the unfair
labor practice issue."
'o G & H Products, 261 NLRB 298 (1982); International Harvester, 138
NLRB 923, 929 (1962).
l i Hawaiian Hauling Service, 219 NLRB 765 (1975). In Ad Art, supra,
an employee's persistent challenges of management's views were held
protected and his discharge was thereby held to be violative of the Act
See also Clara Barton Terrace, supra.
i4 It, of course, cannot be said that Bianco's actions on November 16
were of such a character as to render him untit for further service. In
that regard, see Prescott Industrial Products, 206 NLRB 51 (1971). The
impartial chairman stated in his award that the November 16 incident
when isolated may not appear to be a severe breach of discipline.
'I The remark obviously arose out of his employment situation and it
is clear that the Union's grievance on the subcontracting matter was set
for arbitration 2 days later was a matter of common concern among em-
ployees. Cf. Country Club ofLittle Rock, 260 NLRB 1112 (1981). See also
Ajax Paving Industries, 261 NLRB 695 (1981).
4 Atlantic Steel Co.., upra.
532
MARTY GUTMACHER. INC.
had used expletives in questioning a foreman about the
use of seniority in assigning overtime. The Board held
that it was appropriate to defer to an arbitration award
upholding that employee's discharge as based on his
entire disciplinary record, including the use of obsceni-
ties about his supervisor. On the basis of that Board de-
termination, there is simply no way I could find that the
impartial chairman's award of December 7 was "palpa-
bly wrong as a matter of law." Conclusive effect must be
given to it. 15
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
i5 The Board's power to so delegate its decisional functions is not de-
rived from any provision therefor in the Act; presumably it lies in the
amorphous body of the Federal Common labor law
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. It will effectuate the purposes of the Act to give
conclusive effect to the December 7, 1981, award issued
by the impartial chairman.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 6
The complaint is dismissed.
in In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
533