International Great Lakes Shipping Co.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 701 (N.L.R.B. 1974)

INTL. GREAT LAKES SHIPPING CO
International Great Lakes Shipping Company and
Norman Newsome and Jerome Yaeger. Case
13-CA-11887
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On July 23, 1974, Administrative Law Judge John
M. Dyer issued the attached Decision in this proceed-
ing. Thereafter, Charging Parties filed exceptions and
a supporting brief, and Respondent filed a reply to
Charging Parties' exceptions.
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, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
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 Members Fanning and Jenkins concur in the result They note that no
party contends that the arbitration procedures were not fair or that the
parties had not agreed to be bound It is clear from the award ' that the
arbitrator has given consideration to the concerted activity question raised
in the complaint, and that evidence relating thereto was adduced The
transcript of the arbitration hearing has been carefully reviewed and they
conclude, as did the arbitrator, that Newsome and Yaeger were not dis-
charged for engaging in protected concerted activities However, they are
constrained to indicate that the disposition of this case was unnecessarily
delayed by the Administrative Law Judge's deferring to prospective arbitra-
tion pursuant to the Board's policy as enunciated in Collyer Insulated Wire,
192 NLRB 837 (1971) Thus, the conduct in issue occurred in June 1972,
the charge was filed on November 3, 1972, and the Regional Director issued
a complaint and notice of hearing on January 26, 1973, alleging that Re-
spondent discharged Newsome and Yaeger in violation of Sec 8(a)(1) of the
Act The hearing in this matter commenced on March 29, 1973, and on that
date the Administrative Law Judge granted a motion to postpone the hear-
ing indefinitely so that parties could arbitrate the matter Approximately 10
months later, on January 21, 1974, the arbitrator issued his award Follow-
ing the submission and consideration of briefs, the Administrative Law
Judge issued his Decision on July 23, 1974 Moreover , the instant Board
review and decision required additional time Such a delay in the resolution
of employee rights is a natural consequence of Collyer
Furthermore , Members Fanning and Jenkins are convinced that the issue
raised by the allegations of the complaint is not one which falls within the
special competence of an arbitrator , but is primarily one for resolution under
the provisions of the Act, which the Board has been mandated by Congress
to enforce James Banyard [McLean Trucking Co] v NLR.B, 505 F 2d
342 (C A D C, 1974)
DECISION
STATEMENT OF THE CASE
701
JOHN M. DYER, Administrative Law Judge: On November
3, 1972,' Norman Newsome and Jerome Yaeger filed a
charge against International Great Lakes Shipping Com-
pany, herein called Respondent, the Company, or the Em-
ployer, alleging that Respondent had discharged them be-
cause of their union and/or protected, concerted activities on
June 27.
The Regional Director issued a complaint and notice of
hearing on January 26, 1973, alleging that Respondent dis-
charged Newsome and Yaeger in violation of Section 8(a)(1)
of the Act because they had complained about conditions of
employment relating to occupational health and safety and
about Respondent's facility. Respondent's answer of Febru-
ary 19, 1973, admitted the service and commerce allegations
and the allegation regarding supervisory status, but denied
that Respondent violated the Act in any way.
The hearing in this matter commenced on March 29, 1973,
in Chicago, Illinois, and at the beginning of the hearing the
parties stipulated that Local 150, International Union of Op-
erating Engineers, herein called the Union, should be stricken
from the formal documents as a party in interest. With the'
agreement of the representative of the Union the motion was
granted
Respondent moved that the hearing in this matter be post-
poned indefinitely while it was taken to arbitration under the
terms of the contract between the Union and the Company.
The General Counsel opposed the motion, and evidence was
taken on whether the motion should be granted based on
whether there was any problem between the Charging Parties
and the Union that could possibly prevent a fair and regular
arbitration, or their not being properly represented by the
Union in an arbitration proceeding. No such problems ex-
isted. Respondent stated that it would waive any arguments
as to time limits , etc., and would agree to go to immediate
arbitration concerning the matters specified.
After hearing testimony and arguments, a motion to post-
pone the hearing indefinitely so that the parties could arbi-
trate was granted on March 29, 1973.
On March 21, 1974, the General Counsel informed me by
letter that the arbitrator selected by the Union and the Re-
spondent, James R Cox, had issued his decision and award
more than a month and a half previously, but due to a clerical
error, this was the first notice to me.
On March 26, 1974, an order to show cause why this case
should not be dismissed upon compliance with the arbi-
trator's award was issued, and it set forth specific dates for
responses by the parties. A motion to postpone the dates was
granted to counsel for the Charging Parties.
On April 22, a brief was received from counsel for the
Charging Parties in response to the order to show cause. In
essence it states that the decision of the arbitrator is repug-
nant to the policies and purposes of the National Labor Rela-
tions Act and that the evidence presented to the arbitrator
"showed conclusively that the discharges of the Charging
Parties were motivated, at least in part, by the fact that the
i Unless otherwise stated , all dates herein refer to 1972
215 NLRB No. 121
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charging Parties were engaged in activities which are pro-
tected by the Act. Under these circumstances, the arbitrator's
decision to reinstate the employees without backpay is a re-
sult that is repugnant to the central purposes of the National
Labor Relations Act, and such an award should not preclude
the Board from making an independent determination as to
the facts."
On May 9, 1974, the Respondent submitted a reply which,
in essence, states that the arbitrator's decision meets the crit-
eria set forth by the Board in Spielberg Manufacturing Com-
pany, 112 NLRB 1080 (1955), and consequently the arbi-
trator's decision and award should be honored by the Board.
Counsel for the Charging Parties submitted a further
memorandum received on May 16, 1974, taking issue with
certain things stated in the Respondent's reply. Also submit-
ted was the transcript of the arbitration (15 days and 3,884
pages).
The Charging Parties allege that the arbitrator's decision
and award is repugnant to the purposes of the Act and con-
trary to the Board's standards in Spielbergin that the arbitra-
tor did not grant backpay to the discnminatees, although
ordering them reinstated to their jobs . It is their position that
the arbitrator did not treat key evidence, and that his deci-
sion , finding that protected concerted activities was not the
reason for the discharge, is improper.
General Counsel was advised of the arbitrator's award and
decision and of the Notice to Show Cause, and I have been
administratively advised that the General Counsel takes no
position with respect to this matter. This means that the one
who is charged with presenting the government's evidence in
this matter, is now taking the position that he does not know,
or will not advise, whether the complaint in this matter
should be pursued, or whether the arbitrator's decision comes
within the Board 's Spielberg standards. This would seem to
be the precise area in which a prosecutory function must be
exercised to determine whether the prosecutor should urge
that the matter go on to trial, or that the arbitration and
award has negated the necessity to pursue the complaint
Such an abdication of responsibility is puzzling to say the
least.
I have concluded, primarily on the basis of the arbitrator's
decision and award, that the Spielberg standards have been
met and that the complaint and charge in this matter should
be dismissed.
On the entire record in ,his case based on the evidence
received, I make the following
FINDINGS OF FACT
I COMMERCE FINDING AND UNION STATUS
Respondent is an Ohio corporation with its principal office
and place of business in Chicago, Illinois, where it is engaged
in the loading and unloading of vessels. Respondent annually
provides services valued in excess of $50,000 to firms which
are directly engaged in interstate and foreign commerce.
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
Respondent admits, and I find, that Local 150, Interna-
tional Union of Operating Engineers, is a labor organization
within the meaning of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES AND THE ARBITRATION
DECISION AND AWARD
Respondent operates a terminal where it loads and unloads
ships using gangs of stevedores and operating engineers who
operate the cranes. The Charging Parties operated cranes for
Respondent during its shipping season which lasts' from
around April through December of each year and are mem-
bers of the Union.
Respondent and the Union have contracts governing
wages, hours, and working conditions, including no-strike
provisions.
Current management of the Company took over around
1970-71, and there were a number of disputes between the
Charging Parties and the Company involving the Union for
some time thereafter.
In early May 1972, the Charging Parties complained to the
State of Illinois Department of Labor concerning unsanitary
lunchrooms and lack of restrooms. There is no question but
that an inspector from the Department of Labor of the State
of Illinois surveyed the property and made some statements
to management. It is also clear that in the contract between
the Union and the Company, it was agreed that the Com-
pany, as soon as practical, would build a new facility with
lunchrooms and restrooms for its employees, and in the in-
terim would allow the employees to use the office facilities.
The Charging Parties maintain that part of the concerted
activities for which the Charging Parties were discharged was
their oral complaint to an official of the Occupational Safety
and Health Administration on the day prior to their dis-
charge, and that they assume the fact of such complaint was
made known to the Company with the discharges following
immediately.
However, it is clear from the arbitration proceedings that
testimony to establish whether one of the officials of the
Company knew the OSHA investigator prior to the time of
the investigation in this case was never pinned down, nor was
anything established to show direct knowledge. The Charg-
ing Parties' attorney asserts this as a fact but such claims are
not borne out by the evidence. Moreover, the Charging Par-
ties' brief to the arbitrator (which I was asked to read), in
discussing an incident concerning fireworks thrown by the
Charging Parties on the docks, states: "Moreover, the record
clearly demonstrates that the decision to fire the grievants
was made on June 22, 1972, the day after the walkout, and
that the grievants were not discharged for using fireworks."
This statement of the Charging Parties admits that the deci-
sion to discharge the Charging Parties was made on that date
which was some 4 days before the claimed complaint to the
Occupational Safety and Health people, and would negate
any claim that a contact with OSHA had anything to do with
the discharges.
The Board's criteria have been spelled out in Spielberg and
in other cases in which it has been applied, and further posi-
tions and statements by the Board Members were made in
Collyer Insulated Wire, 192 NLRB 837 (1971). The Board
noted in The Timken Roller Bearing Company, 70 NLRB 500
INTL GREAT LAKES SHIPPING CO. 703
(1946), that it deferred to an arbitrator's decision: "despite
the fact the Board would otherwise have found that an unfair
labor practice had been committed. The Board explained 'it
would not comport with the sound exercise of our administra-
tive discretion to permit the Union to seek redress under the
Act after having initiated arbitration proceedings which, at
the Union's request, resulted in the determination upon the
merits."' The Board has found that it is discourage repugnant
to the Act for an arbitrator's decision not to award backpay
in certain circumstances. discourage Ohio Ferro-Alloys Corpo-
ration, 209 NLRB 577 (1974).
There are no contentions that the proceedings were not fair
and regular or that the parties had not agreed to be bound.
We are left with the contention that the decision is repugnant
to the purposes and policies of the Act because the Charging
Parties believe it inconceivable that part of the decision to
discharge was not based on concerted activities and that an
award of reinstatement without backpay is wrong, and the
other contention that the arbitrator did not consider evidence
relating to an unfair labor practice discharge to be relevant.
As noted above, the arbitration took some 15 days and ran
3,884 pages of transcript. The arbitrator's 13-page decision
and award discusses the positions of the parties and the essen-
tial facts of the case. In his decision the arbitrator said:
The Arbitrator has carefully considered the Record and
Briefs. Special consideration has been given to the con-
certed activity question raised both during the present
Hearing and in the NLRB Complaint.
Based on the evidence and record, I find that the
Company had just cause to discipline grievants, and that
the discipline did not relate to protected concerted activ-
ity.
former positions , but without any backpay . Such a decision
was clearly within his prerogatives , and his decision demon-
strates that he considered the matters presented and did not
credit the positions of the Charging Parties.
Based on the findings of the arbitrator and on the fact that
the General Counsel 's case to support an 8(a)( 1) violation is
far from overwhelming , I cannot conclude that the arbi-
trator 's decision is erroneous , and I will not state that since
the award does not grant backpay the arbitrator 's decision
and award is repugnant to the purposes and policies of the
Act.
Because the arbitrator found that the punishment was
more than was due under the particular circumstances does
not mean he has to award backpay in the manner that the
Board might if it were considering the case. An arbitrator
may consider the relative merits of the positions of the parties
and determine to give either a complete or partial award,
depending on how he assesses the situation . This is the es-
sence of arbitration . In this case , the arbitrator has found this
particular award proper under the circumstances . The pro-
ceedings have been fair and regular ; the award on its face does
not contain grievous error and therefore it would appear that
the Board would not wish to go further into the matter.
Accordingly I grant Respondent 's motion to dismiss the
charge and complaint in this matter on the basis that the
decision and award of the arbitrator in this matter meets the
tests of Spielberg.
Upon the basis of the foregoing findings and conclusions,
I hereby issue the following recommended:
ORDER'
The complaint and charge in this matter are hereby dis-
missed on the basis that the arbitrator's decision and award
meets the Board's criteria as set forth in Speilberg.
Basically, the arbitrator found that the Charging Parties
violated certain rules or orders, and that they were dis-
charged as a disciplinary measure for their offenses, which
action was not related to any concerted activities. He also
concluded that the penalty of discharge was too harsh for the
offenses and decided that they should be reinstated to their
z 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