Hawaiian Hauling Service, Ltd.

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 765 (N.L.R.B. 1975)

HAWAIIAN HAULING SERVICE, LTD. 765
Hawaiian Hauling Service , Ltd. and Joseph R. Rich-
ardson . Case 37-CA-988
July 30, 1975
DECISION AND ORDER
The Union grieved the discharge to arbitration.
During the arbitration, Respondent contended that
Richardson's conduct at the October 15 meeting,
viewed against his work record, justified the dis-
charge. Thus, Respondent's brief to the arbitrator
states:
On January 21, 1975, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed an answering brief.
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, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
1. The complaint alleges that Respondent unlaw-
fully discharged Joseph R. Richardson. The Admin-
istrative Law Judge defers to an arbitral decision up-
holding the discharge since in his opinion that
decision meets the Spielberg standards.'
The General Counsel excepts, contending that the
Board should not defer to the arbitrator's award in-
asmuch as it is repugnant to the policies of the Act.
We agree with the General Counsel.
There is no controversy as to the relevant facts.
Richardson had been in Respondent's employ for 22
years. He had been the Teamsters Local 996 steward
for the past 14 years. In early October 1973, Richard-
son received two warning letters from Respondent,
one regarding a leave of absence he had taken begin-
ning August 8, 1973, and the other regarding certain
pornographic pictures he had placed under the glass
on his desk in January 1972 and May 1973 and
which had remained there until Respondent's vice
president and general manager, Kelly Rogers, or-
dered them removed on October 3, 1973. On October
15, 1973, Richardson and the union business repre-
sentative, Harold DeCosta, had a meeting with Rog-
ers and Respondent's supervisor, Abel Medina, con-
cerning the warning letters . DeCosta informed
Rogers and Medina that the Union wanted the warn-
ing letters removed from Richardson's file . Rogers
declined to do so. DeCosta asked Rogers if he had
ever seen the pictures before. Rogers denied that he
had. Richardson then called Rogers a liar. Rogers
admittedly terminated Richardson for doing so?
' Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
2 Rogers testified:
Q. (By Respondent' s counsel , Richard F. Liebman) Can you tell us
now, what was the reason , the actual reason that you had for discharg-
ing Mr . Richardson?
A. (Mr. Rogers) I felt we had been extremely lenient . The sequence
of events , I thought we had already gone overboard . I had gone as far
as I could in my job in dealing with the situation ; and I felt the man
The accusations of the Grievant during the
October 15th meeting were as Rogers put it,
"The straw that broke the camel's back," and
the Grievant would not have been fired had he not
made these statements. But, the Grievant's entire
work record precipitated the final decision. [Em-
phasis supplied.]
The Union contended that Richardson's conduct at
the October 15 meeting was protected by Section 7 of
the Act and cannot be made the basis for discharge.
On February 26, 1974, the arbitrator issued an unex-
plained award I in which he simply stated that based
upon the evidence adduced at the hearing it was his
decision "that the discharge in question was proper."
Accordingly, he denied the grievance.
Richardson admittedly would not have been dis-
charged but for his actions in questioning Rogers'
veracity at the October 15 meeting. The arbitrator
found that his discharge in that circumstance was
justified. The effect of such an award is to substan-
tially dilute an employee's right to fully present his
case during grievance and arbitration proceedings as
the employer's equal. The award is therefore repug-
nant to the policies of the Act. We will not defer to
such an award.4
The applicable standard governing employer con-
duct when dealing with employees during collective
bargaining was set forth long ago in The Bettcher
Manufacturing Corporation, 76 NLRB 526, 527
(1948). There the Board stated:
A frank, and not always complimentary, ex-
change of views must be expected and permitted
the negotiators if collective bargaining is to be
natural rather than stilted. The negotiators must
be free not only to put forth demands and coun-
terdemands, but also to debate and challenge
the statements of one another without censor-
ship, even if, in the course of debate, the veracity of
one of the participants occasionally is brought into
had been given every possibility. Bear in mind I had not even suspend-
ed him for the pornography or anything, strictly a warning letter. Not
even a day's suspension . Then to sit in front of a supervisor of mine and
fabricate a story, calling me a liar , I felt was just absolutely the last
straw ; there was no way in good conscience I could tolerate that with-
out terminating this man.
3 The issuance of an unexplained award was in accordance with the
agreement of the parties as to the procedure to be followed at the arbitration
hearing.
s Spzelberg Mfg Co., supra.
219 NLRB No. 126
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question. If an employer were free to discharge
an individual employee because he resented a
statement made by that employee during a bar-
gaining conference, either one of two undesira-
ble results would follow: collective bargaining
would cease to be between equals (an employee
having no parallel method or retaliation), or em-
ployees would hesitate ever to participate per-
sonally in bargaining negotiations, leaving such
matters entirely to their representatives. [Em-
phasis supplied.]
That principle has since been uniformly followed by
the Board' One case in particular is worthy of note,
Crown Central Petroleum Corporation, 177 NLRB 322
(1969), enfd. 430 F.2d 724 (C.A. 5, 1970). There, the
Board, in a factual situation strikingly parallel to the
instant case, found that an employer's discipline of
an employee for calling an employer representative a
liar during a grievance meeting was unlawful, the
conduct of the employee being protected.
We recognize, of course, that an employee may
engage in conduct during a grievance meeting which
is so opprobrious as to be unprotected. We also rec-
ognize that in some cases there may be reasonable
disagreement as to whether or not that point is
reached. In such cases, we will not refuse to defer to
an arbitrator's award simply because we would have
reached a different result. This is not such a case.
The award here strikes at the very foundation of
the grievance and arbitration mechanism.
Richardson's grievance as to the warning letter on
pornography was based on the premise that
Respondent's general manager, Rogers, had con-
doned his conduct. When Rogers asserted that he
had not seen the material on Richardson's desk,
Richardson could only meaningfully pursue the
grievance by establishing that Rogers was lying. It is
true that Richardson could have been more moder-
ate in his language while asserting this position. The
lack of this diplomacy does not render conduct un-
protected. Any attempt to dictate the exact language
to be used in the collective-bargaining atmosphere
can only have the effect of stifling that bargaining.
Moreover, Richardson's statements would still have
amounted to essentially the same thing. Richardson
was asserting that Rogers was lying. In any case it
was not the use of the term "liar" that upset Rogers,
but Rogers' claim that Richardson was fabricating a
story. Richardson had to either accept Rogers' ver-
sion of the facts or face discharge. Thus, the only
way Richardson could avoid discharge in this cir-
cumstance was to withdraw the grievance or to pur-
3 See, e .g., Huttig Sash & Door Company, Inc, 154 NLRB 1567 (1965),
Thor Power Tool Company, 148 NLRB 1379 ( 1964).
sue it in a meaningless way. Precluding a union from
calling into question the credibility of management
witnesses and requiring it to accept management's
factual assertions would so heavily weigh the mecha-
nism in the employer's favor as to render it ineffec-
tive as an instrument to satisfactorily resolve griev-
ances.6 The grievance and arbitration mechanism is a
vital cog in the machinery for the resolution of indus-
trial disputes. An arbitrator's award which tends to
destroy the effectiveness of that mechanism, as the
arbitrator's award here does, is clearly repugnant to
the policies of the Act.
2. As to the merits, Richardson admittedly would
not have been discharged except for his remarks on
his own behalf during the grievance meeting. As not-
ed above, remarks of this nature during a grievance
meeting are protected. While Respondent's discharge
of Richardson for his protected conduct during the
collective-bargaining process itself may have been in-
herently discriminatory,' we find it unnecessary to
resolve that issue, for we find that in any event such
discharge constitutes interference, restraint, and
coercion with respect to Section 7 rights. Respondent
has thus violated Section 8(a)(1) of the Act.
Remedy
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease
and desist therefrom and take certain affirmative ac-
tion in order to effectuate the policies of the Act.
Having found that Respondent unlawfully dis-
charged employee Joseph R. Richardson, we shall
order that Respondent offer him immediate and full
reinstatement to his former position or, if that posi-
tion no longer exists , to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges and to make him whole for any
loss of pay suffered as a result of his unlawful dis-
charge, with backpay computed as prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest at 6 percent annum as provided in Isis
6 Respondent contends that Richardson , acting as a union steward, repre-
senting himself, was guilty of bad-faith bargaining in violation of Sec
8(b)(3) when he , according to Respondent, fabricated the claim that Rogers
had seen the pornographic material and, therefore, that Richardson lost his
protected status . This argument assumes that the truth lies with Rogers'
version Yet that is the very question which the grievance and arbitration is
designed to resolve . Respondent cannot be permitted to short-circuit the
inquiry in this manner. Moreover , Respondent's position would enable it to
take the "master-servant" relationship into the grievance meeting. The rela-
tionship at a grievance meeting is not a "master -servant" relationship but a
relationship between company advocates on one side and union advocates
on the other side , engaged as equal opposing parties in litigation. Crown
Central Petroleum, supra To permit an employer to exercise the power of
discharge , where the union has no parallel method of retaliation , solely on
the basis that a steward in the employer 's view is not telling the truth, would
destroy that essential relationship
See N.L R B v Great Dane Trailers, Inc., 388 U.S. 26 (1967).
HAWAIIAN HAULING SERVICE, LTD. 767
Plumbing & Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Hawaiian Hauling Service, Ltd., Honolulu, Hawaii,
its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or disciplining employees because
of their protected participation in grievance meet-
ings.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Joseph R. Richardson immediate and
full reinstatement to his former position or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or
other rights and privileges.
(b) Make Joseph R. Richardson whole for any
loss of pay he may have suffered as a result of his
unlawful discharge in the manner set forth in the
Remedy section of this Decision and Order.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its place of business of Honolulu, Ha-
waii, copies of the attached notice marked "Appen-
dix." 8 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being duly
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBERS KENNEDY AND PENELLO, dissenting:
Unlike our colleagues, we would adopt the deci-
sion of the Administrative Law Judge to defer to the
arbitration award herein. The issues in this case were
fully presented before the arbitrator, the parties
agreed to be bound to arbitration, the proceedings
were fair and regular, and the result reached is not
clearly repugnant to the purposes and policies of the
Act.
Joseph Richardson had received warnings for tak-
ing a leave of absence and for displaying porno-
graphic pictures on his desk. He grieved the warn-
ings. At a grievance meeting, he contended that
General Manager Rogers had condoned his display
of pictures. When Rogers said he had not previously
seen the pictures, Richardson called him a liar. Rich-
ardson was thereupon discharged. At the arbitration
hearing on Richardson's discharge, Respondent con-
tended that Richardson's conduct at the grievance
meeting was protected activity.
The issue before the arbitrator was not whether
Richardson was discharged for pursuing his griev-
ance but involved his conduct at the grievance meet-
ing and whether that conduct was so unwarranted as
to cross the line of protected grievance activity. In
upholding the discharge, the arbitrator in effect
found that Richardson had crossed the line. The ma-
jority, although paying lip service to Spielberg, is sub-
stituting its factual judgment for that of the arbitra-
tor and finding that Richardson's conduct fell on the
other side of the line. Yet in so doing the majority
ignores for the most part Richardson's work record,
the manner in which Richardson called the manager
a liar, and the contention that Richardson's griev-
ance defense was wholly fabricated and frivolous.
This case does not involve an arbitral award which
makes a legal conclusion wholly at odds with the
Act, but involves a determination of fact. Thus, in
our view, the majority is unwarranted in concluding
that the arbitral award reached a result which is
clearly repugnant to the policies and purposes of the
Act.
B In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the 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"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice. We intend to
carry out the Order of the Board or-the judgment of
any court, and to abide by the following:
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid and/or protection
To refuse to do any or all of these things.
WE WILL NOT do anything that interferes with
or restrains or coerces employees with respect to
these rights.
WE WILL NOT discharge or discipline employ-
ees because of their participation in grievance
meetings.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE WILL offer Joseph R. Richardson immedi-
ate and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority or other rights and privileges, and WE
WILL make him whole for any loss of earnings he
has suffered.
HAWAIIAN HAULING SERVICE, LTD.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: This case
was heard before me in Honolulu, Hawaii , on August 29
and 30, 1974. The complaint, which issued on July 24,
1974, pursuant to a charge filed on April 3, 1974, alleges a
violation of Section 8(a)(3) and (1) of the Act. Specifically,
the charge alleges that on or about October 15, 1973, Re-
spondent discharged Joseph R. Richardson because of his
activities as a union steward and/or because of his other
activities on behalf of the Union . Respondent denies Rich-
ardson was terminated for the reasons alleged and con-
tends he was discharged for unprotected activities and that
the Board should defer to an arbitration award affirming
the discharge rendered pursuant to the grievance and arbi-
tration procedures provided in the collective -bargaining
agreement between Respondent and Hawaii Teamsters
and Allied Workers, Local 996.
All parties were given full opportunity to appear, to in-
troduce evidence , examine and cross-examine witnesses, to
argue orally, and to file briefs . Briefs and supplemental
case citations were filed by both the Respondent and the
General Counsel and have been carefully considered.
Upon the entire record I in the case , and from my obser-
vation of the witnesses and their demeanor , I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Hawaiian Hauling Service , Ltd., herein called Respon-
dent, a Hawaii corporation , is engaged in general trucking,
moving, and warehousing operations . During the past year
Respondent performed services valued in excess of $50,000
for several Hawaii firms , each of which made purchases or
sales of goods and supplies from outside the State of Ha-
waii in excess of $50 ,000 annually . Respondent admits, and
I find , that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Hawaii Teamsters and Allied Workers, Local 996, is a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For a number of years Respondent and Hawaii Team-
sters and Allied Workers, Local 996, have been parties to
collective-bargaining agreements covering Respondent's
trucking, warehouse, and clerical employees? Section 12 of
the contract provides , in substance, that all controversies
between the Union and Respondent will be settled in ac-
cordance with the disputes procedures provided for there-
in. In the event a dispute is not adjusted by step 3 of the
disputes procedure, the matter is submitted to a citywide
board of adjustment comprised of two representatives des-
ignated by the employers in the industry and two by the
Union. If the committee is unable to reach a majority deci-
sion within 5 days , the grievance may then be submitted to
an arbitrator who shall hold a hearing and give a decision
within 10 working days. The contract contains a panel of
three arbitrators. Each party may strike one arbitrator
from the list , and the remaining arbitrator hears and de-
cides the case. The agreement further provides that the de-
cision of the arbitrator "shall be final and binding upon the
parties ." Section 13 of the contract , entitled "Discharge
and Suspension ," provides that the Employer may dis-
charge or discipline an employee for, inter alia, violation of
the Employer's rules or safety regulations, and that the em-
ployee shall have the right to protest any discharge, suspen-
sion, or warning notice in writing within 10 days, in which
case the protest shall be referred immediately to the city-
wide board of adjustment for determination in accordance
with the disputes procedure in section 12. As noted above,
if the citywide board of adjustment is unable to reach a
decision, the matter may be submitted to an arbitrator.
Kelly Rogers was Respondent 's vice president and gen-
eral manager at all times material herein . Gary Lee and
Abel Medina were two of Respondent's supervisors. An-
1 Certain errors in the transcript are hereby noted and corrected.
2 Approximately 130 to 150 in number.
HAWAIIAN HAULING SERVICE, LTD. 769
thony Troche and Harold DeCosta were business repre-
sentatives of Teamsters Local 996, Troche servicing the
contract from June 1970 to March 1, 1973, and DeCosta
thereafter. Joseph R. Richardson, the Charging Party,
commenced working for Respondent in 1952 and was ter-
minated on October 15, 1973. Richardson was one of three
shop stewards, having served as shop steward for the 14
years immediately preceding his termination . He was also a
member of the Union's executive board.
B. Richardson's Activities as a Shop Steward
The General Counsel contends, apparently, that a con-
tributing factor in Richardson's termination was that he
"actively supported employee interests in their relations
with management ." To support this theory the General
Counsel elicited testimony from Troche, DeCosta, and
Richardson regarding a number of "complaints," discussed
below, which were made to Respondent on behalf of the
employees. Sometime in 1972, Troche and Richardson met
with Rogers to protest the suspension of Manuel DeLa-
Santos because he had violated a house rule by failing to
notify the Employer that he would be absent.3 DeLaSantos
was reinstated. Richardson testified that in "1969 or 1971,
I am not too sure," employee Zack Kahoa reported to him
that he was not receiving the correct rate of pay. Kahoa
had apparently returned to Respondent's employ after 2
years in the army and was working at a lesser rate of pay
than his former job had called for. Richardson talked to
Rogers who made arrangements for Kahoa to receive the
correct rate of pay. There was no indication that the meet-
ing was other than amicable. In the summer of 1972, em-
ployee Rodney Hoodnick was suspended because he failed
to call in and report that he would be late for work. Rich-
ardson talked to either Supervisor Medina or Lee and the
suspension was rescinded. Also in the summer of 1972,
Richardson complained to Warehouse Supervisor Salong
of the fact that a warehouseman was driving a truck. After
learning there were no drivers around and that it was an
emergency, Richardson "gave him permission to use the
warehouseman to drive the truck, to help them out, be-
cause they were stuck," and told Salong that "at least, you
should call Abel Medina, and Abel calls me and asks my
permission if it is all right for a warehouseman to drive a
truck." Sometime in mid-1972, employee Lawrence Souza
contacted Richardson because he wanted to transfer from
the household division to the terminal division. Richardson
talked to Rogers: "I told Kelly Rogers that Souza ap-
proached me and told me that he never wanted to be
household. Kelly said, 'Well, if I am not mistaken, he
signed a paper, and if he signed a paper, he is going to have
to stay at household.' I said, 'According to Souza, he said
he did not sign no paper.' So, Kelly said, 'I am sorry, but
he signed the paper. He is going to stay in household.' So,
I told him, 'Okay. When I see Souza, I will tell Souza, and
I will tell Souza to come up and talk to you.' So, I did.
After I got through talking to Kelly Rogers, I went back to
my regular job. Four o'clock, or a quarter after three, Sou-
za came back. And I jumped on Souza. I said, `Gee, you
tried to make me look bad. I talked to Kelly Rogers, and
you signed the paper, and I am up there talking to Kelly
Rogers, about you did not sign no paper.' And he said,
'No, I did not sign it.' I said, `You go up now and talk to
Kelly Rogers: So, Lawrence Souza did." A couple of
months later Souza was transferred back to the terminal. In
June 1972, employee Sam Tai complained to Richardson
that he was going to have to work on a holiday, Kameha-
meha Day, Richardson asked Richard Shigemitsu, who
was in charge of the household department, why Tai had to
work that day, and that if he did the Company would have
to pay him time-and-a-half rate in addition to holiday pay.
Shigemitsu disagreed, so Richardson called Troche and to-
gether they went to see Rogers. While the details of the
conversation are vague, it appears that Troche acted as the
spokesman on Tai's behalf, that he and Rogers had an
argument, that Richardson called Rogers a liar, and that
Rogers responded, "Don't call me a liar." The matter was
resolved to the Union's satisfaction. Also in 1972, Richard-
son called Troche and complained the Employer was at-
tempting to deny holiday pay to certain employees. The
testimony reveals that the only conversation with Respon-
dent regarding this matter was between Rogers and
Troche." Troche testified that he and Richardson talked to
Rogers sometime in 1972 protesting a reduction in pay for
employee Clinton Yoshikawa and that during the conver-
sation Rogers accused Richardson of being a "shit distur-
ber" by "stirring up the men"; that Richardson called Rog-
ers a liar ; and that the matter was resolved to the Union's
satisfaction. He testified that after the grievance was com-
pleted and Richardson had left, that Rogers remarked that
Richardson had a lot of control over the men and was
stirring them up and "God. Look at my desk. Full of pa-
pers and grievances. Christ, this guy is coming in with
grievances. I don't know how many more grievances he is
going to file." 5 Troche testified that on another occasion
Richardson called him because several employees had
complained that their paychecks were short. Troche told
Richardson to contact David Sensano, Respondent's book-
keeper and accountant, and find out why. Apparently
Richardson did so and reported back that the checks were
in fact short. Troche then called Rogers who said that he
would look into the matter and take care of it and that it
wouldn't occur any more. After it happened several more
times, Rogers complained ". . . that the steward had gone
in and raised hell with David Sensano." Troche responded
that "if Sensano gave him a smart answer, he is going to get
smart right back with him." The parties stipulated that
4 Troche thought he had filed a wntten grievance over the matter , but, as
was the testimony concerning all of the complaints , was quite vague.
5 As noted in fn. 3, while Troche testified at one point that 10 wntten
grievances had been filed over an approximate 2-year period, and that 2 to
5 percent of the total number of grievances had been in writing, he eventu-
3 Troche , DeCosta , and Richardson testified in terms of "filing griev- ally reduced his estimate of wntten grievances to one . I conclude therefore
ances ." Troche testified at one point that perhaps 10 grievances were writ- that Rogers would not have complained that his desk was "full of papers
ten, which comprised 2 to 5 percent of the total number grievances . He then and grievances ," and discredit Troche 's testimony regarding this conversa-
admitted his estimate was too high and could only recall one grievance tion . As will be seen hereafter, further of Troche's testimony convinces me
which was possibly written, that involving a holiday in 1972 . that he did not testify truthfully at all times.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richardson voiced a complaint to Respondent' s manage-
ment regarding a suspension of William Cahill and that
"the matter was resolved."
DeCosta testified there was a continual problem with the
Respondent hiring extra help through an outside employ-
ment agency instead of calling the union hall for employ-
ees, and that he met with Rogers "quite a few" times. Rich-
ardson was present at "a few, a couple ......
The General Counsel contends in his brief that Richard-
son "actively participated in opposing any derogation in
the Teamster 996 contract and bargaining unit by any pro-
posed merger of Respondent's bargaining unit with the
Oahu Transport bargaining unit represented by the Inter-
national Longshoremen and Warehousemen's Union." In
support of this contention the General Counsel refers in his
brief to pages in the transcript wherein Troche testified
that Richardson called and reported that "the Big Five was
meeting this morning in Mr . Rogers' office" and that he
felt Troche should know about it .6 It appears Troche
thought the meeting concerned a merger of the two compa-
nies . Troche therefore went to the meeting uninvited, and
after learning the meeting was not for that purpose, he left.
There is no evidence that Richardson 's name was even
mentioned or that Respondent was aware that Richardson
later contacted the unit employees and encouraged them to
vote for Teamsters Local 996 in the event a merger of the
two companies took place.
The General Counsel contends Richardson "persistently
complained about the safety of the truck beds of flat bed
trailers, and caused management to promise to remedy the
defects." Richardson testified that he first approached Su-
pervisor Lee, and then Supervisor Medina, about the fact
the flat beds on the trailers were in bad repair and that
someone might get hurt , and that after nothing was done
he approached Rogers about the matter . Richardson testi-
fied as follows regarding his meeting with Rogers: "I told
Kelly that the trailer bed is pretty bad and I said, 'I talked
to Gary and talked to Abel Medina. And they said some-
thing was going to do something about it.' Then Kelly
Rogers explained to me, `Joe, you know, the company is
pretty bad shape, that we can't fix it all at one time,' he
said, `But I can promise you that I will fix it, but not all one
time. Maybe 1 month or 2 months we will fix one or two. I
will get it all in shape .' I said, `that is good enough for
me.' "
The General Counsel also refers to two incidents regard-
ing Jet Valet, another company affiliated with Respondent,
as evidence that Richardson actively supported employee
interests in their relations with management . Apparently
the employees of Jet Valet didn't have a shop steward.
Richardson learned of two employee problems at Jet Valet
and reported them to DeCosta. One of the problems, re-
garding scheduling, was resolved to the Union's satisfac-
tion by DeCosta, Richardson, and an official of Jet Valet.
The other problem involved an employee's suspension and
was resolved against the employee after discussions be-
tween DeCosta, Richardson, and Rogers.
The General Counsel also contends Richardson "partici-
pated in complaining to management and the PUC that the
terminal was unsafe because of congestion of freight and
vehicles and several safety hazards including rear mirrors
and defective brakes." In support of this allegation the
General Counsel makes reference to DeCosta's testimony
that he voiced complaints to Rogers that "the terminal was
too stacked, there was not room enough for people to move
around 7 and . . . problems of the vehicles . . . a cracked
rear vision mirror, and various safety features as to the
brakes, that I have complaints from the drivers . . . and
I did say I was going to the PUC . . . if there was not
anything done about it."
The evidence supporting the General Counsel's conten-
tion that Richardson "complained that Oahu Transport
employees were performing Hawaiian Hauling unit work,
and caused management to stop such assignments " is that
at some unkown time Richardson heard that an Oahu
Transport truck was pulling one of Respondent's contain-
ers, and he asked Supervisor Lee "How come?" Lee re-
plied, "Well, it was only for that day. The container was
supposed to go out." Richardson replied, "Well, I guess,
you know, don't let that happen," and Lee responded,
"No, this is it."
The General Counsel also notes that Richardson "pro-
tested other disciplinary and safety matters involving em-
ployee Bright, accidents, seniority and overtime," and
makes reference to the following testimony by DeCosta in
support thereof:
Q. During the period you were business agent and
Richardson was the steward, did you have occasion to
present any grievances?
A. I think there is a distinction here. I followed up
on disciplinary actions that was handed out to em-
ployees. I responded to the disciplinary actions quite a
bit. We had disciplinary actions on accidents concern-
ing a few people. We had a termination case on Mr.
Bright, that I responded to. The grievances I filed were
mostly verbally. These grievances concerned seniority
problems or overtime, quite a bit.
Q. How did you learn about these problems?
A. Through Mr. Richardson.
The record shows there were three union shop stewards
at Respondent 's premises, Richardson , Kaeo , and Kalua.
Excepting Richardson 's termination, all grievances , except
possibly one,8 were settled between the parties to
everyone's satisfaction at the first stage of the contractual
disputes procedure, and no unfair labor practices were ever
filed by either Respondent or the Union. Richardson testi-
fied on cross-examination that he had a good relationship
with Rogers ; that he was able to settle all grievances with
Rogers on a friendly basis; that when Rogers came with
Respondent in 1971 , Respondent had been losing money
and Rogers had put it on a paying basis and had thanked
him in 1972 for his cooperation with the Union; and that
he didn't have any dispute with Rogers in 1973 except for
his discharge. DeCosta testified at the arbitration hearing
that Respondent had a "smooth running shop on labor
management relations," and that there had been an "open-
6 Respondent and Oahu Transport are both subsidiaries of Castle and t Which DeCosta had learned from Richardson.
Cooke. s Troche thought a written grievance had been filed regarding holiday pay
HAWAIIAN HAULING SERVICE , LTD. 771
door policy. I could go in and talk to them about the prob-
lems." 9
C. Richardson's Other Activities
1. Leave of absence
In early 1972, Richardson requested a leave of absence
to attend the Golden Gloves tournament on the mainland.
While Rogers expressed a reluctance to approve the leave,
he did approve it since Richardson had already made ar-
rangements and management had permitted it in the past.
Rogers advised him, however, that this was the last time,
and shortly thereafter posted a notice on the bulletin board
to the effect that no more leaves of absence would be
granted anyone unless it was of an emergency nature.
A few days prior to August 1, 1973, Richardson request-
ed Supervisor Lee for a leave of absence so that he could
work on a movie job on the island of Kauai. Richardson's
reason for asking permission of Lee in place of Terminal
Superintendent Medina was that he "did not see Abel
Medina down on the floor around the terminal ." to Lee
failed to mention the leave of absence to Rogers, who, after
noticing Richardson's absence from the floor of the termi-
nal for several days, called Medina to see if Richardson
was sick. Medina advised him that Richardson was on
leave of absence and that Lee was supposed to have talked
to Rogers about it. Rogers then talked to Lee and learned
that Lee had indeed authorized the leave even though it
was not his responsibility. Lee represented that Richardson
would be gone about a month. Because of Lee's action,
Rogers put him on probation and advised Lee that he
might be terminated. Shortly after Labor Day (September
3) Rogers talked to Lee again and learned that Richardson
had been home during the Labor Day weekend and that he
might be gone another month. Rogers discussed the matter
with DeCosta and expressed disappointment that Richard-
son had made the leave request of Lee instead of Medina.
DeCosta replied that Richardson had informed him that he
had "cleared it directly with" Rogers. II Rogers responded
with the opinion that Richardson had not discussed it with
him because Richardson knew that Rogers would not grant
the leave of absence. Rogers asked DeCosta to contact
Richardson and get him back on the job as soon as possi-
ble."
On October 3, after Richardson had been away from his
job over 2 months, Rogers wrote him the following letter:
Dear Joe:
management of this company in an extremely embar-
rassing position with the employees of this company.
We understand that you requested that Gary Lee
grant you a leave of absence of approximately one
month so that you could work full time on an outside
job as a truck driver for some motion picture compa-
ny. We are puzzled as to why you did not request this
from your direct supervisor Abel Medina, Terminal
Superintendent, as you have pertaining to your other
requests in the past. You know very well that he is
your direct supervisor and not Gary Lee.
Several days had passed when we noticed you missing
from work and after asking questions we then learned
from Gary Lee that he had on his own, contrary to
company policy, granted you the leave of absence.
You know very well that had I been aware of this and
the reasons involved, I would not have under any con-
ditions granted you this leave of absence. We have just
recently rejected the request of another employee to
attend a three-day religious convention right here in
Honolulu. The list of special favors granted to you by
this company over the years is very, very long. This
recent action of yours has greatly damaged the won-
derful esprit de corps that we have developed these
past two years among all of our employees, bargaining
and non-bargaining. Both you and Gary Lee have
shocked and disappointed us and serious consider-
ation was given concerning the possibility of terminat-
ing you both.
Your last day of work was August 1, 1973 and it is
now October 3, 1973. This is to officially advise you
that if you haven't reported to work on or before
Monday, October 15, 1973, you will be terminated.
We have checked with all of our management people
and no one is aware of your exact address except that
it is believed that you are on the island of Kauai.
Therefore, we are sending this letter to your home ad-
dress in hopes that it will be forwarded to you. In
addition, by copy of this letter we are asking the
Teamsters Union if they know your contact address
and if so if they will be so kind as to forward a copy of
this letter to you.
A copy was forwarded to the Union. Later in the day,
Rogers added the following longhand postscript at the bot-
tom: "Abel Medina has another letter to personally hand
to you, which concerns another matter."
We must inform you that your absence from work and
the manner in which it was handled has placed the
9 It does not appear from the briefs and reply briefs to the arbitrator that
evidence regarding Richardson 's role as a shop steward in processing
"grievances" or complaints was presented to the arbitrator. In Electronic
Reproduction Service Corporation, 213 NLRB 758 (1974 ), the Board indi-
cated its disapproval of "piecemeal litigation in which a party may well
prefer to have 'two bites of the apple,' trying part of the discharge case
before the arbitrator but holding back evidence material to its claim so as to
be able to pursue the matter in yet another proceeding before this Board."
io He had requested leaves of absence from Medina on two occasions
earlier in 1973.
2. The pictures
Also on October 3, Rogers decided to remove and store
one of the two desks located at the back of the terminal.
One of the desks was used by Richardson and the other
was a spare. Whe he inspected the desks, Rogers found
displayed under the glass on Richardson's desk eight pho-
tographs which he termed as "hard-core pornography pho-
ii This testimony was not refuted by DeCosta.
12 Rogers testified that he had turned down the request of other employ-
ees for leaves of absence to work on the same job.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tographs." 13 He returned to his desk, called Medina, and
told him that he had never seen such "garbage" and that
Medina was to remove the pictures , place them in an enve-
lope, and return them to Rogers ." On the same day, Rog-
ers wrote Richardson a second letter , which reads:
Dear Joe:
You have in our opinion violated Section 2 of our
Company House Rules and Regulations . Section 2
concerns personal conduct which violates common
decency or morality. You have also in our opinion
violated Section 12 of our Company House Rules and
Regulations which concerns the using of company
equipment and or property for purposes other than
company business without permission.
We were absolutely shocked to find on display on the
top of your desk several hard core pornography pho-
tographs of sexual orgies . This garbage has been re-
moved from your desk after being dated and wit-
nessed and is now under lock and key . As a working
foreman and a shop steward who is supposed to set an
example for the other workers, you have shocked us
beyond comprehension.
We believe that the Union would agree with us that
this action of yours is sufficient cause for immediate
termination . We have spent endless hours in deep con-
cern and meditation concerning you personally and
your problems and after much thought have decided
to give you one more chance ; but you must be aware
that this is your final warning. We strongly recom-
mend that you confer with your supervisor, Abel Me-
13 Richardson had placed three of the pictures under the glass on his desk
in January 1972, and added the other five in May 1973. Of the eight, one is
of the "Playboy" centerfold type , and the others depict people engaged in a
variety of sex acts . Rogers denied he had seen any of the pictures poor to
October 3, 1973. Richardson, on the other hand, testified that Rogers had
seen the first three pictures around January or February 1972. He later
changed his testimony to say that Rogers had seen them in January or
February 1973. Troche testified that on an occasion when he had been to
the warehouse to discuss a problem, that he , Rogers , and Medina walked to
the rear of the warehouse where he stopped to get a drink of water at a
water fountain located only 4 or 5 feet from Richardson 's desk , and that he
observed Rogers looking at the pictures on Richardson 's desk. Both Rogers
and Medina denied the incident , and the evidence shows convincingly that
the water cooler was not 4 or 5 feet from Richardson 's desk, but was in fact
approximately 90 feet away . Neither Troche, Torres, nor English, all of
whom the General Counsel called as witnesses in an attempt to show that
Rogers had seen the pictures prior to October 1973, testified at the arbitra-
tion hearing (see reference to Electronic Reproduction Service Corp., at fn. 9).
I discredit Torres ' testimony that Rogers had been at Richardson's desk in
July or August 1973 while he and Richardson were eating lunch . Not only
did Rogers deny being there , but Richardson failed to testify to such an
event. I find it hard to believe that Richardson would have forgotten the
incident, if it in fact happened , since it was so close to the time of his
termination . Accordingly , I do not credit Torres ' testimony . English also
testified he had seen Rogers in the area of Richardson 's desk . His testimony,
however, was vague and confusing and not worthy of belief . Both Rogers
and Medina testified that Richardson 's desk was located in an area where
some customer transactions occur , and that women and children are occa-
sionally in the area.
14 Rogers testified without contradiction that , in September or October
1972, he had found a 6- by 6-foot piece of plywood in a customer area,
containing "probably a dozen" "Playboy" magazine pictures , and had or-
dered that they be taken down "and destroyed in the next 5 minutes."
dina, concerning your personal relationship with this
company and your fellow employees. Also, during
your long absence there have been many changes
within our organization and it would behoove you to
get on board.
The following letter, containing copies of the two October
3 letters to Richardson , was sent to the Union:
Gentlemen:
To say the least , we are completely disappointed with
Joe Richardson as a working foreman and as a shop
steward . We had considered several actions , including
(1) Outright termination
(2) Demotion
(3) Requesting the Union to replace him as shop stew-
ard.'5
As you can see, we have been extremely lenient with
him but must advise you that this is the end of the
leniency shown to him. He has totally embarrassed us
with ALL of our employees.
Sincerely,
HAWAIIAN HAULING SERVICE, LTD.
Kelly Rogers
Vice President & General Manager
KR/au
P.S. We have not mailed directly to Joe Richardson
the warning letter concerning the hard core pornogra-
phy photographs . Mr. Abel Medina, our Terminal Su-
perintendent, will hand this letter personally to Joe if
and when he returns and we are sending a copy of this
letter to your office . This is a sensitive matter and out
of respect for Joe 's wife and children , we don't want to
take the chance of someone else besides Joe opening
the envelope.
K. R.
A few days later, Rogers talked to DeCosta who guaran-
teed that Richardson would be back to work by October 15
and possibly by October 10. On Friday, October 12, Rog-
ers instructed Medina and Sensano to go to Richardson's
home, and if Richardson was there to be sure he read the
two letters and understood he was to report to work. In the
event Richardson was not there, they were to ask Mrs.
Richardson to read the "leave of absence" letter, but under
no circumstances was she to be given the letter regarding
the pictures. The letters were apparently delivered to Rich-
ardson by Medina in this fashion. About 3 o'clock that
afternoon, Richardson came to the warehouse. After ascer-
taining that Richardson had read the two letters, Rogers
instructed Medina to discuss them with Richardson and to
advise him of the changes that had been made in the Com-
pany since he had been gone. As Richardson wanted to
talk to Rogers , arrangements were made to meet at 3:45.
Instead of meeting, however, Richardson went to the union
15 Sec . 15 of the collective-bargaining contract, entitled "Stewards," states
in pertinent part : "The Union agrees that before designating a shop steward
it will discuss his appointment with the Employer and will not appoint or
continue as a shop steward any employee whom the Employer shows to be
unacceptable because of irresponsibility, incompetency in his work, or any
other good cause."
HAWAIIAN HAULING SERVICE , LTD. 773
hall "to pay the Union 10 percent for the job the Union
gave him on the other island." He returned about 5 p.m.
and advised Medina that he had been "down to the
Union" and was not going to meet with Rogers.
D. The Termination
On Monday morning, October 15, Richardson reported
for work. Shortly before 8 o'clock, DeCosta came to the
warehouse and told Richardson that he was going to talk
to Rogers about the letter he had received regarding the
"pornographic material," and wanted Richardson to ac-
company him. When they arrived at Richardson's office
and DeCosta informed Rogers that he wanted to talk
about Richardson, Rogers suggested that he and DeCosta
first talk alone. DeCosta stated he wanted Richardson pre-
sent, so Rogers called for Medina to come in and listen.
DeCosta led off the meeting by stating that he wanted the
Company to remove the warning letters from Richardson's
file,16 which Rogers declined to do. While there is some
dispute between the witnesses as to exactly what was said
after that, it is clear that DeCosta asked Rogers if he had
ever seen the pictures before, that Rogers denied that he
had, that Richardson disputed the fact and called Rogers a
liar, and that Rogers terminated Richardson. Rogers ad-
mitted that he would not have terminated Richardson had
the latter not called him a liar." After learning that Rogers
would not change his mind, DeCosta stated the Union
would procede under the grievance procedure. The dis-
charge was confirmed by letter the same day.
E. The Arbitration
On October 19, 1973, the Union requested, in accord-
ance with the collective-bargaining contract, that the city-
wide board of adjustment be convened to hear the griev-
ance over Richardson's termination. As the citywide board
of adjustment failed to reach a majority decision, on No-
vember 5, DeCosta requested "an informal hearing for the
arbitration of Mr. Joe Richardson's termination for viola-
tion of Company's house rule #2.l8 Let it be known that
the Teamsters Union, Local 996, hereby strikes Mr. Stuart
16 Richardson testified that DeCosta stated he was there to have the pic-
tures removed from the file.
17 Rogers testified as follows:
I felt that we have been extremely lenient . The sequence of events, I
thought that we had really gone overboard . I had gone as far as I could
in my job in dealing with the situation ; and I felt the man had been
given every possibility. Bear in mind I had not even suspended him for
the pornography or anything , strictly a warning letter. Not even a day's
suspension . Then to sit in front of a supervisor of mine and fabricate a
story, calling me a liar, I felt was just absolutely the last straw, there
was no way in good conscience I could tolerate that without term:nat-
ing this man.
18 The house rules provide in pertinent part : The following offenses will
subject an employee to disciplinary action or discharge : I Insubordination
or failure or refusal to obey instructions or to perform work as requiied or
assigned. 2. Conduct which violates common decency or morality . 12. Using
company equipment and/or property for purposes other than company
business without permission.
Cowan from the list of three (3) eligible and agreed upon
arbitrators.""
The arbitration was held on January 16 and 17, 1974.
The parties entered into the following stipulations with re-
spect to the arbitration proceedings: 1. The Respondent
and Teamsters Local 996 agreed that an informal arbitra-
tion would be conducted before C. F. Damon, Jr., Esq.,20
to resolve a grievance filed on behalf of Richardson to
grieve his discharge from Respondent on October 15, 1973.
2. That the subject grievance and all issues relating thereto
were properly before the arbitrator in accordance with the
provisions of the current collective-bargaining agreement
between the parties, and the parties agreed to be bound by
his decision, excluding any statutory remedies available. 3.
That all parties received adequate notice of the time and
place of the arbitration hearing, and all parties were pre-
sent and represented by their respective counsel,. Counsel
for the Union was not a practicing member of the bar. 4.
That all parties were given and exercised full opportunity
to present any evidence and arguments in support of their
respective positions at the hearing. 5. That Richardson and
DeCosta testified in support of the subject grievance; and
Rogers and Medina testified in support of Respondent's
decision to discharge Richardson. 6. That John R. Desha II
represented the Union at the hearing; and that Richard F.
Liebman represented Respondent. 7. That all parties
agreed that the arbitrator would issue a decision, that such
decision would only contain his conclusions, and would
not contain any comments on the evidence, and that a
formal transcript was not requested or made of the testi-
mony and arguments presented at the hearing.
The Respondent and Union each filed a brief and a re-
ply brief with the arbitrator in support of their respective
positions. The Employer's brief stated the issues to be: A.
What was the basis for the decision to discharge the griev-
ant? B. Did the grievant commit the acts for which he was
discharged? C. Was discharge the appropriate penalty? D.
Was the grievant acting in the capacity of an independent
union steward during the meeting on October 15, 1973, and
was this meeting a grievance meeting; were these alleged
facts communicated to the Employer; and, would these al-
leged facts have immunized the grievant from any discipli-
nary action for his misconduct during that meeting?
The Union's brief stated the issues as: 1. Was the meet-
ing on October 15, 1973, a "grievance meeting" within the
meaning of that term and which employers and unions
generally accept? 2. Was the conduct of employee in call-
ing his employer, Kelly Rogers, a "liar" at the October 15,
1973, meeting, conduct which is afforded the protection
granted by Section 7 of the National Labor Relations Act
and which cannot be made the basis for discharge? 3. Can
the Employer now raise past conduct, for which warning
letters had been sent to employee and placed in his work
records, as a basis for discharge?
The briefs and reply briefs of both of the parties recite
their respective versions of the testimony and cite and
19 Sec 12 6 of the contract provides. "Stuart Cowan, Ted Tsukiyama and
Frank Damon are hereby appo+r_2ed as a panel of arbitrators . One (1) arbi-
trator shall be chosen as follows- Each party may strike one (1) name from
the panel and the remaining arbitrator shall serve in the case."
2 Damon is an attorney in Honolulu
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quote extensively from a number of Board and court deci-
sions, including Crown Central Petroleum Corporation, 177
NLRB 322 (1969), enfd. 430 F.2d 724 (C.A. 5, 1970), upon
which the General Counsel principally relies in contending
the decision of arbitrator Damon is repugnant to the poli-
cies of the Act. In addition, the employer's brief refers to
several published arbitration decisions which the Union
analyzed in its reply brief.
On February 26, 1974, the arbitrator issued the follow-
ing:
AWARD
This is an informal arbitration under Section 12 of the
collective-bargaining agreement between the parties
dated June 4, 1973.
Based upon the evidence adduced at the hearing, it is
the decision of the arbitrator that the discharge in
question was proper . Accordingly, the grievance is de-
nied and the action of the Employer is sustained.
F. Contention of the Parties
The General Counsel contends that Richardson was
"discharged for his record of militancy as a steward" and
that the case "is squarly [sic] and incontrovertibly governed
by the leading case of Crown Central Petroleum Corporation
...." In contending the Board should not defer to the
arbitrator's decision, the General Counsel calls attention to
the fact no transcript of the arbitration proceedings was
made and that "the arbitrator did not render an explicated
decision ." He claims "the Board has long held that in the
absence of a showing that the arbitrator considered the
statutory issue and correctly, the Board may not defer to
the arbitrator 's decision ," and "in any event, the
arbitrator's decision herein plainly is repugnant."
The Respondent contends the evidence shows that Re-
spondent, in discharging Richardson, did not violate the
Act; that the issue of whether or not Richardson's dis-
charge was in violation of the Act was in fact presented to
the arbitrator as evidenced by the briefs and reply briefs
submitted to arbitrator by the respective parties, and that
the Board should defer to the arbitrator's award upholding
the discharge action.
G. Conclusions
The central issue herein is whether the Board should de-
fer to the arbitrator 's award rendered in accordance with
the grievance-arbitration procedures established by the
parties in the contract, or whether the award should be
rejected for failure to meet the Spielberg requirements.21
The General Counsel does not claim that Richardson
was inadequately represented, that the arbitration proceed-
ings were not fair and regular, nor that the parties had not
agreed to be bound . His argument that the lack of a tran-
script prevents me from ascertaining the evidence before
21 Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
the arbitrator, whether he considered the unfair labor prac-
tice issue, and if so, whether he utilized the proper standard
of law in so considering the matter, is unpersuasive. As
stated by the trial examiner in W. R. Grace and Co., 179
NLRB 500, 505 (1969), "to adopt the view that a transcript
of an arbitration proceeding is a sine qua non to Board
deferral . . . would impose an unnecessary requirement on
the parties and derogate from the full encouragement of
the private settlement of disputes by adding a burdensome
expense to the agreeed-on method of settlement. This is a
very real consideration, as is demonstrated by the fact that
in the vast majority of arbitration proceedings, no tran-
script is made." The parties to the arbitration had agreed
that a formal transcript would not be made of the testimo-
ny and arguments presented at the hearing, and that the
arbitrator's decision or award would not contain any com-
ments on the evidence. Furthermore, the General Counsel
and Respondent stipulated that the grievance and all issues
relating thereto were properly before the arbitrator in ac-
cordance with the collective-bargaining contract and
agreed to be bound by his decision. Moreover, the briefs
and the reply briefs, submitted by Respondent and the
Union to the arbitrator following the arbitration hearing,
ably and cogently set forth the contending positions, and,
from reading them, I have no doubt that the parties pre-
sented substantially the same evidence with respect to
events leading up to and including the October 15 meeting,
as was presented in this hearing, and that the arbitrator
was aware and considered the unfair labor practice issue.22
My function, then, is to determine whether the arbitrator's
decision was "clearly repugnant to the purposes and poli-
cies of the Act.- 23
In Spielberg, the arbitration board found that the com-
pany was justified in refusing to reinstate four individuals.
The matter was then fully litigated before a Board trial
examiner who found that the four employees had been ille-
gally discriminated against in violation of Section 8(a)(1)
and (3) of the Act. The Board, in deferring to the arbitra-
tion award, stated "This does not mean that the Board
would necessarily decide the issue of the alleged strike mis-
conduct as the arbitration panel did. We do not pass upon
that issue." Following Spielberg, the Board has adhered to
the standard that the question of whether an arbitrator's
decision is clearly repugnant to the purposes and policies
of the Act "is not to be determined on the basis of whether
the Board would reach the same result on the record made
before an arbitrator." 24
In essence, the question presented to me is the question
presented to the arbitrator. The arbitrator denied the griev-
32 The test is not what the written decision contains , but what the arbitra-
tor considered . Superior Motor Transportation Co, Inc., 200 NLRB 892
(1972); Terminal Transport Co., 185 NLRB 672 (1970). In Spielberg, an arbi-
tration board voted two to one and "entered a written decision which mere-
ly states that the company was justified in refusing to reinstate the four
individuals " While the arbitration board did not set forth the basis for its
decision , the Board deferred to the arbitration award.
23 The Board has long held that where an issue presented in an unfair
labor practice proceeding has previously been decided in an arbitration
proceeding, the Board will defer to the arbitration award if the proceedings
appear to have been fair and regular, all parties had agreed to be bound,
and the decision of the arbitration panel is not clearly repugnant to the
purposes and policies of the Act.
2 Terminal Transport Company, Inc., supra at 673
HAWAIIAN HAULING SERVICE, LTD.
ance and sustained the action of the Respondent.25 Were I
to consider only the evidence with respect to events occur-
ring on October 15, it may be that I would disagree with
the award of the arbitrator and even conclude that the
award was contrary to the holding in Crown. But that is not
to say that the award is "clearly repugnant" to the Act, or
25 The General Counsel contends , however, that Crown Central Petroleum
Corp., "squarly [sic] governs the simple issues posed in the case and can
result in but one finding-that Richardson was discharged for his protected
activity." The Respondent 's brief and the Union 's reply brief to the arbitra-
tor disclose that both parties presented their views on Crown Petroleum to
the arbitrator.
775
that I would disagree with his award upon all the evidence
and arguments which-it is clear from the briefs and reply
briefs-were submitted to him.
In these circumstances , I shall defer to the arbitrator's
decision since it is my opinion that the arbitral decision
meets the Spielberg standards, including the requirement
that the decision be not clearly repugnant to the purposes
and policies of the Act. It is thus unnecessary to decide the
substantive merits of the complaint , and accordingly, it
should be dismissed . Electronic Reproduction Service Corpo-
ration, supra; Granite City Steel Company, 211 NLRB 880
(1974); Superior Motor Transport, supra.
[Recommended Order omitted from publication.]