Howard Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 2017

365 NLRB No. 96 (N.L.R.B. 2017)

365 NLRB No. 96
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Howard Industries, Inc. and International Brother-
hood of Electrical Workers, Local Union No.
1317. Case 15–CA–131447
June 13, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On September 24, 2015, Administrative Law Judge
Keltner W. Locke issued the attached decision. The
Charging Party, International Brotherhood of Electrical
Workers, Local Union No. 1317, filed exceptions and a
supporting brief, the General Counsel filed cross-
exceptions and a supporting brief, the Respondent filed
answering briefs, and the General Counsel filed a reply
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,1
findings, and conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. June 13, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

1 We do not rely on the judge’s citation to Shands Jacksonville Med-
ical Center, Inc., 359 NLRB 918 (2013), which was issued by a panel
subsequently found invalid. See NLRB v. Noel Canning, 134 S.Ct.
2550 (2014).
Joseph Hoffman, Esq. and Kevin McClue, Esq., for the General
Counsel.
Elmer E. White, Esq. (The Kullman Law Firm), of Birmingham,
Alabama, for the Respondent.
Clarence Larkin, for the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on September 9, 2015, in Laurel, Mississippi. After the
parties rested, I heard oral argument, and, on September 10,
2015, issued a bench decision pursuant to Section
102.35(a)(10) of the Board’s Rules and Regulations, setting
forth findings of fact and conclusions of law. In accordance
with Section 102.45 of the Rules and Regulations, I certify the
accuracy of, and attach hereto as “Appendix A,” the portion of
the transcript containing this decision.1 The Conclusions of
Law and Order provisions are set forth below.
CONCLUSIONS OF LAW
1. The Respondent, Howard Industries, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Charging Party, International Brotherhood of
Electrical Workers, Local Union No. 1317, is a labor
organization within the meaning of Section 2(5) of the Act.
3. At all times since about 1970, the Charging Party has been
the exclusive bargaining representative, within the meaning of
Section 9(a) of the Act, of the following unit of employees at
the Respondent’s Laurel, Mississippi facility: All full-time and
regular part-time production and maintenance employees,
EXCLUDING all other employees, guards, and supervisors as
defined in the Act. This unit is an appropriate unit for
collective bargaining within the meaning of Section 9(b) of the
Act.
4. The Respondent and the Charging Party were parties to a
collective-bargaining agreement covering the employees in the
unit described above. This collective-bargaining agreement
was effective from January 21, 2012 to January 20, 2015. This
agreement establishes grievance resolution procedures
culminating in binding arbitration.
5. At all material times, Gregory Jones has been an employee in
the bargaining unit described above.
6. On or about June 12, 2014, the Respondent suspended
Gregory Jones, and discharged him on about June 19, 2014.
7. To contest the suspension and discharge of Gregory Jones,
described in paragraph 6, above, the Charging Party filed the
unfair labor practice charge in this case and also filed a
grievance, the latter resulting in a hearing before Arbitrator
Cary J. Williams on November 21, 2014. On February 6, 2015,
the arbitrator issued an opinion and award denying the
grievance and sustaining the suspension and discharge of Jones.

1 The bench decision appears in uncorrected form at pages 149
through 165 of the transcript. The final version, after correction of oral
and transcriptional errors, is attached as “Appendix A” to this certifica-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
8. Respondent and the Charging Party had agreed to be
bound by the arbitrator's decision described in paragraph 6
above, the procedures resulting in the decision were fair and
regular, and the arbitrator considered the unfair labor practice
issue.
9. The arbitrator's decision described in paragraph 6, above,
is not repugnant to the Act.
10. It is appropriate to defer the present Complaint to the
arbitrator's decision.
11. Further proceedings are unwarranted.
On the findings of fact and conclusions of law herein, and on
the entire record in this case, I issue the following
recommended2
ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 24, 2015
APPENDIX A
BENCH DECISION
This decision is issued pursuant to Section 102.35(a)(10) and
Section 102.45 of the Board's Rules and Regulations. Finding
that an arbitrator already has ruled on a grievance factually
parallel to the circumstances under consideration here, and
concluding that the arbitrator's decision meets the relevant
Board standards for deferral, I recommend that the Board defer
to that decision and dismiss the Complaint.
Procedural History
This case began on June 24, 2014, when the Charging Party,
International Brotherhood of Electrical Workers, Local Union
No. 1317, filed an unfair labor practice charge against the
Respondent, Howard Industries, Inc., with Region 15 of the
National Labor Relations Board. The Region docketed this
charge as Case 15–CA–131447 and served it on the Respondent
by regular mail the next day. The Charging Party amended this
charge on August 18, 2014 and again on August 22, 2014.
The charge alleged that the Respondent had violated the Act
by discharging an employee, Gregory Jones, who was the
Union's chief shop steward. After an investigation, the Region
deferred further proceedings to the grievance-arbitration
process specified in the collective-bargaining agreement which
the Union and Respondent had negotiated. On November 21,
2014, the Union and Respondent participated in a hearing
before Arbitrator Cary J. Williams. On February 6, 2015, the
arbitrator issued an opinion and award denying the grievance
and sustaining Respondent's discharge of Jones.
Thereafter, the Regional Director for Region 15 rescinded
the deferral to arbitration. On May 28, 2015, the Regional
Director issued a Complaint and Notice of Hearing. On July
14, 2015, the Regional Director issued a Compliance
Specification and Order Consolidating Complaint and
Compliance Specification and Notice of Hearing. Respondent

2 If no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, these findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed
waived for all purposes.
filed timely answers to these pleadings.
On September 9, 2015, a hearing opened before me in
Laurel, Mississippi. During the hearing, the General Counsel
further amended the Complaint to allege that certain named
individuals were Respondent's supervisors and/or agents, but
this amendment did not add any new unfair labor practice
allegations. The General Counsel also amended the
Compliance Specification.
Both the General Counsel and the Respondent called and
examined witnesses and offered documentary exhibits. After a
recess, counsel presented oral argument. All parties had the
opportunity to call and examine witnesses and offer
documentary evidence for inclusion in the record. After
counsel presented oral argument, I recessed the hearing to
prepare this bench decision.
Today, September 10, 2015, I am issuing this bench
decision.
Admitted Allegations
Based on the admissions in Respondent’s Answer and
stipulations during the hearing, I find that the General Counsel
has proven the allegations raised in Complaint paragraphs 2(a),
2(b), 3, 4, 5, 6(a), 6(b), 6(c), 7, and 8(a). More specifically, I
find that the Respondent has an office and place of business in
Laurel, Mississippi, where it is engaged in the manufacture and
nonretail sale of electrical transformers. Further, I find that the
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act and that
assertion of jurisdiction in this matter is appropriate.
Additionally, I find that Vice President of Human Resources
Loren Koski and Supervisor Charles Smith are supervisors and
agents of Respondent within the meaning of Sections 2(11) and
2(13) of the Act, respectively.
Based on the admissions in Respondent’s Answer, I also find
that the Charging Party, International Brotherhood of Electrical
Workers, Local Union No. 1317, is a labor organization within
the meaning of Section 2(5) of the Act. Further, I find that at
all times since about 1970, the Union has been and is the
exclusive bargaining representative, within the meaning of
Section 9(a) of the Act, of the following unit of employees at
Respondent’s Laurel, Mississippi facility:
Included: All full-time and regular part-time production and
maintenance employees.
Excluded: All other employees, guards, and supervisors as
defined by the Act.
Additionally, I find that this unit is an appropriate unit within
the meaning of Section 9(b) of the Act. Since about 1970, the
Respondent has recognized the Union as the exclusive
collective-bargaining representative of employees in this unit,
and such recognition has been embodied in successive
collective-bargaining agreements, the most recent of which was
effective from January 21, 2012 to January 20, 2015. At all
times material to this case, the Respondent and the Union have
maintained and enforced this agreement, which covers wages,
hours and other terms and conditions of employment of the
bargaining unit employees.
Based on the admissions in Respondent’s Answer, I also find
HOWARD INDUSTRIES, INC. 3
that about June 10, 2014, Respondent’s employee Gregory
Jones, chief Union steward at Respondent’s facility,
complained that the Respondent was requiring employees to
work mandatory double overtime without proper notice, in
contravention of the collective-bargaining agreement. Further,
I find that about June 12, 2014, the Respondent suspended
Jones and that on about June 19, 2014, the Respondent
discharged Jones.
In its Answer, the Respondent denied the allegations raised
in Complaint paragraphs 1(a), 1(b) and 1(c) concerning the
filing and service of the charge and amended charges in this
case, on the basis that it had insufficient information to
determine the accuracy of those allegations. The charges and
certificates of service are in the record. Based on that evidence,
noting the absence of contradictory evidence and the
presumption of administrative regularity, I find that the charges
were filed and served as alleged.
The Deferral Issue
The Complaint alleges only two actions to be unfair labor
practices. These are the Respondent’s suspension of Jones on
June 12, 2014 and the discharge of Jones on June 19, 2014.
Although Respondent admits taking these actions, it denies the
alleged unlawful motivation which is an element of a Section
8(a)(3) violation. The Respondent argues that the Board should
defer to the February 6, 2015 decision of Arbitrator Williams,
which has been introduced into evidence. The General Counsel
opposes such deferral.
Arbitrator Williams’ decision notes that, in addition to the
Union’s grievance concerning Jones’ discharge, the Union
also filed an unfair labor practice charge with the National
Labor Relations Board, Region 15, on June 24, 2014, and
amended that charge on August 18, 2014 and August 22,
2014. The Board deferred the August 22, 2014 amended
charge to arbitration to resolve the underlying dispute and a
hearing was held in Laurel, Mississippi on November 21,
2014. During the hearing, the parties were afforded the
opportunity to present testimony and evidence and no issues
were raised regarding timeliness or arbitrability. The
arbitrator received post-hearing briefs on January 12, 2015.
With the exception of the Board’s compliance officer, who
gave testimony concerning backpay issues during the unfair
labor practice hearing, the same witnesses testified both before
me and before Arbitrator Williams. These witnesses were the
discharged employee, Gregory Jones, the Union’s president and
business manager, Clarence Larkin, the Respondent’s vice
president of human resources, Loren Koski, and another human
resources representative, Bailey James. Additionally, a
supervisor, Charles Smith, testified before Arbitrator Williams
but did not testify in the unfair labor practice hearing.
The arbitrator’s decision, describing the issues raised by each
side, included the following: “The Union contends the
Company discriminated against Grievant and ultimately
suspended and discharged him for his union activities as chief
steward.”
From the arbitrator’s decision it is clear, and I find, that the
arbitrator considered the unfair labor practice allegations.
Thus, the arbitrator’s decision states as follows:
The evidence and testimony was insufficient to prove
that the Company discriminated against Grievant for his
union activities as Chief Steward when it suspended and
discharged him in June 2014. The Company presented
documentary evidence of numerous other employees that
were disciplined for violating Rules 35 and 36 when they
failed to perform an overtime assignment and left work
without authorization . . . The evidence therefore did not
prove Grievant was discriminated against or singled out
for punishment in this case.
As further evidence of discrimination by the Company,
the Union presented evidence concerning a grievance filed
by Grievant against supervisor Gable. In that case
Grievant’s discipline was eventually overturned by Arbi-
trator Bain . . . While Arbitrator Bain’s decision did in fact
sustain this grievance, the facts therein were not sufficient
to prove the Company had any specific animus against
Grievant as Chief Steward or as an employee generally.
That case did involve both Koski and Bailey who were the
decision-makers regarding discipline but there was no evi-
dence they had any ill feelings against Grievant or were
“out to get” him either in that instance or in the present
case.
In addition, the Union presented testimony from
Grievant that supervisor Smith was angry at him for filing
a grievance on June 10, 2014 based on the June 6th inci-
dent regarding the 12 hour rule . . . and that this was addi-
tional evidence to support its contention that the Company
discriminated against Grievant by discharging him. While
the testimony did show that Grievant and Smith had a dis-
cussion on June 10, 2014 regarding the grievance filed that
day, this evidence did not prove it was the basis for
Grievant’s subsequent discipline. There was not enough
evidence to establish that Smith was engaged to an extent
that he sought discipline for Grievant because of the griev-
ance he had filed or that he discriminated against Grievant
for this action. To the contrary, the evidence proved that
Grievant violated Plant Rules by leaving without permis-
sion and failing to complete his overtime assignment.
Grievant was disciplined for the violations, not any argu-
ment he might have had with Smith over filing a griev-
ance.
Based upon this quoted portion of the arbitrator’s decision, I
conclude that the arbitrator did consider the allegations that the
suspension and discharge of Jones constituted unfair labor
practices. For reasons I will discuss later in this decision, I find
that the arbitrator sufficiently weighed the evidence and then
rejected those allegations.
Legal Analysis
To determine whether it is appropriate to defer to the
arbitrator’s decision, I first must determine what legal
framework and criteria to apply. In Babcock & Wilcox
Construction Co., 361 NLRB No. 132 (2014), the Board
adopted new standards for deciding when it would defer to an
arbitrator’s decision. These new standards begin with two
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
threshold questions familiar from the old criteria; namely,
whether the arbitration proceeding was fair and regular and
whether the parties had agreed to be bound.
No one has challenged the fairness and regularity of the
proceeding before Arbitrator Williams. The record in the
present proceeding, including the arbitrator’s 14-page decision,
convince me that the proceeding was fair and regular. I so find.
Similarly, there is no doubt that the parties agreed to be
bound. At the time that Respondent suspended and discharged
Jones, and when the Respondent and Union appeared before
Arbitrator Williams on November 21, 2011, they were parties
to and bound by a collective-bargaining agreement which was
effective by its terms from January 21, 2012 to midnight,
January 20, 2015. In submitting the matter to Arbitrator
Williams, they were following the grievance-arbitration
procedure set forth in that agreement. Therefore, I find that the
parties had agreed to be bound.
The third prong of the Babcock & Wilcox framework
consists of three questions, all of which must be answered in
the affirmative to satisfy the requirements for deferral. The
party urging deferral must show that (1) the arbitrator was
explicitly authorized to decide the unfair labor practice issue;
(2) the arbitrator was presented with and considered the
statutory issue, or was prevented from doing so by the party
opposing deferral; and (3) Board law reasonably permits the
award.
With respect to the second question, I conclude that the
arbitrator was presented with and considered the statutory issue.
In Babcock & Wilcox, the Board stressed “that an arbitrator will
not be required to have engaged in a detailed exegesis of Board
law in order to meet this standard.”
Although the arbitrator’s decision did not include a
discussion of Board case precedent, it did refer to the unfair
labor practice issues and engaged in an analysis of the facts
related to those issues. Therefore, I conclude that the
arbitrator's decision sufficiently satisfies the second of the three
criteria.
However, I cannot conclude that the arbitral process satisfied
the first criterion, which requires an explicit authorization for
the arbitrator to decide the unfair practice issue. Based on the
testimony of the Respondent’s Vice President Koski, I find that
the parties did not explicitly authorize the arbitrator to decide
the statutory issue. At the time of the arbitration, the Board had
not yet issued its Babcock & Wilcox decision.
Now, I turn to the question of whether the Babcock & Wilcox
standards should be applied here. In Babcock & Wilcox the
Board noted that when one of its decisions sets a new standard,
it customarily applies that standard retroactively to cases then
pending, but stated that in this instance, "concerns supporting
retroactive application are outweighed by the injustice that
would result from applying the new standard in pending cases.
Accordingly, we will apply the new standard only
prospectively." The Board further stated:
[W]here parties have already, either contractually or explicitly
for a particular case or cases, authorized arbitrators to decide
unfair labor practice claims, we shall apply the new standard
to all future arbitrations. By contrast, where current contracts
do not authorize arbitrators to decide unfair labor practice
issues, we will not apply the new standards until those
contracts have expired, or the parties have agreed to present
particular statutory issues to the arbitrator.
Babcock & Wilcox, 361 NLRB No. 132, slip op. at 14.
The collective-bargaining agreement which included the
grievance arbitration procedure was effective from January 21,
2012 to January 20, 2015 and during this period, the Union
filed the grievance leading to arbitration. Also during this
period, the parties presented this case to the arbitrator.
Specifically, they did so during a hearing on November 21,
2014. Based on these dates, I conclude that the Board’s
previous arbitration deferral policy applies, and not the new
policy established in Babcock & Wilcox.
It is true that the arbitrator’s decision did not issue until after
the collective-bargaining agreement expired, but it still arose
under and was authorized by the 2012 to 2015 collective-
bargaining agreement. Therefore, concluding that the Babcock
& Wilcox framework does not apply, I will evaluate deferral
under the previous standards.
Under the former standards, the Board would defer to an
arbitration award when the arbitration proceedings appeared to
have been fair and regular, all parties had agreed to be bound,
the arbitrator adequately considered the unfair labor practice
issue that the Board was called on to decide, and the decision of
the arbitrator is not clearly repugnant to the purposes and
policies of the Act. See Shands Jacksonville Medical Center,
Inc., 359 NLRB No. 104 (April 26, 2013), citing Spielberg
Mfg. Co., 112 NLRB 1080, 1082 (1955), and Raytheon Co.,
140 NLRB 883, 884–885 (1963).
For reasons already discussed, I have concluded that the
arbitration proceeding was fair and regular and that all parties
had agreed to be bound. Further, based on the rather extensive
discussion in the arbitrator’s decision, I conclude that the
arbitrator adequately considered the unfair labor practice issues
which the Board is called upon to decide.
The General Counsel argues that Arbitrator Williams did not
consider an element of the unfair labor practice case, namely,
the government’s argument that Jones’ walking off the job
constituted protected activity because it was to enforce a right
under the collective-bargaining agreement. Stated another way,
the arbitrator did not address the principle, relied on by the
General Counsel, that the Act protects activity by one employee
to enforce a collectively bargained right. Interboro
Contractors, Inc., 157 NLRB 1295 (1966).
However, under the Board’s former standard, being applied
here, an arbitrator need not address the General Counsel’s
theory of the case with such specificity. In Olin Corp., 268
NLRB 573, 574 (1984), the Board held that an arbitrator had
adequately considered the unfair labor practice if (1) the
contractual issue was factually parallel to the unfair labor
practice issue, and (2) the arbitrator was presented generally
with the facts relevant to resolving the unfair labor practice. In
the present case, both requirements clearly have been met.
Both the grievance considered by Arbitrator Williams and
the Complaint before me concern the Respondent’s discharge
of Jones. The arbitrator also discussed Respondent’s
HOWARD INDUSTRIES, INC. 5
suspension of Jones before his discharge. Moreover, as already
discussed, the arbitrator’s decision specifically addressed the
unfair labor practice charge and the arbitrator clearly rejected
the argument that the suspension and discharge of Jones
constituted unfair labor practices. Therefore, I conclude that
the issues before the arbitrator were factually parallel to those
in this proceeding. See Motor Convoy, 303 NLRB 135 (1991).
Now, I must determine whether or not the arbitrator’s
decision was clearly repugnant to the Act. Under its previous
standards, the Board would determine whether a particular
award was “clearly repugnant to the Act” by reviewing all the
circumstances, including the contractual language, evidence of
bargaining history and past practice presented in the case.
Southern California Edison Co., 310 NLRB 1229 (1993).
As already noted, the General Counsel has cited Board
precedent for the proposition that when Jones walked off the
job, he was engaged in activity protected by the Act. Similarly,
the General Counsel has argued that this one instance did not
constitute an unprotected intermittent work stoppage. The
General Counsel also argued that the no-strike clause in the
collective-bargaining agreement did not render Jones’ action
unprotected. Thus, the government contends that the
arbitrator's decision was clearly repugnant to the Act.
Under the previous standards, The Board would find deferral
inappropriate under the clearly repugnant standard only when
an arbitrator's award was "'palpably wrong,' i.e. . . . is not
susceptible to an interpretation consistent with the Act." The
party seeking to have the Board reject deferral bore the burden
of proof. Motor Convoy, 303 NLRB 135 (1991).
The Board stated in Kvaerner Philadelphia Shipyard Inc.,
347 NLRB 390 (2006), that if "Board precedent exists that
supports an arbitrator's decision, it cannot be said that the
decision falls outside the broad parameters of the Act. Thus,
such a decision is not palpably wrong or clearly repugnant to
the Act, even if other Board precedent is arguably contrary to
the arbitral decision. See Marty Gutmacher, Inc., 267 NLRB
528–533 (1983)."
In Mobil Oil Exploration & Producing, U.S., 325 NLRB 176
(1997), the Board held that an arbitrator's decision, upholding a
discharge, was palpably wrong because the reason for the
discharge was the employee's protected activity. In the present
case, the General Counsel argues that the reason for the
discharge was activity which itself was protected; specifically,
Jones' walking off the job to assert a right under the collective-
bargaining agreement.
Whether that activity was, in fact, protected, depends on the
scope of the no-strike clause in the collective-bargaining
agreement. The General Counsel offers an interpretation of the
no-strike clause language which would make the language
inapplicable to Jones' walkout. Specifically, the General
Counsel argues that the prohibition on strikes is limited to those
“designed to curtail or interfere with production” and that
Jones' walkout was not designed with that intention.
However, an arbitrator is particularly competent and
empowered to interpret the language of a collective-bargaining
agreement. Here, the arbitrator's decision quoted this no-strike
language in the “Pertinent Contract Provisions” of his decision.
Additionally, the arbitrator considered the plant rules which
the Respondent had established, pursuant to the collective-
bargaining agreement’s management rights clause, and
determined that Jones had violated the rules in a manner which
justified his discharge. Therefore, I conclude that the
arbitrator’s decision is susceptible to a construction which is
consistent with the Act.
In these circumstances, I conclude that the arbitrator’s
decision was not "palpably wrong," as that term of art is used in
Board law, and that it was not clearly repugnant to the Act.
In sum, I conclude that the arbitration proceeding in this case
satisfied the Board’s previous standards, which control here
because the Board decided in Babcock & Wilcox to apply its
new standards prospectively. Therefore, I further conclude that
the Board should defer to the February 6, 2015 decision of
Arbitrator Williams.
Accordingly, I recommend that the Board dismiss the unfair
labor practice Complaint in the present case. In view of that
dismissal, the issues raised by the Compliance Specification are
moot.
When the transcript of this proceeding has been prepared, I
will issue a Certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the
Findings of Fact, Conclusions of Law, and Order. When that
Certification is served upon the parties, the time period for
filing an appeal will begin to run. Throughout this proceeding,
all counsel demonstrated the highest degree of civility and
professionalism, which I truly appreciate.
The hearing is closed.