Martin Redi-Mix, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 559 (N.L.R.B. 1985)

MARTIN REDI-MIX
Martin Redi-Mix, Inc. and Teamsters Local Union
No. 580, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 7-CA-18563
28 February 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 31 March 1982 Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
On 27 February 1984 the Board issued an order re-
manding the proceeding to the judge for consider-
ation and preparation of a supplemental decision in
light of its decision in Olin Corp., 268 NLRB 573
(1984), and Meyers Industries, 268 NLRB 493
(1984). On 18 May 1984 Administrative Law Judge
John H. West issued the attached supplemental de-
cision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The Board has considered the decision, the sup-
plemental decision, and the record in light of all
the exceptions and briefs and has decided to affirm
the judge's rulings, findings, and conclusions only
to the extent consistent with this Supplemental De-
cision and Order.
The judge found that the instant case is not sub-
ject to deferral to the arbitration award under Olin
Corp., supra, because the arbitrator was not pre-
sented with the facts relevant to resolving the
unfair labor practice issue and failed to treat the
contractual issue. The judge further found that the
arbitration award was palpably wrong. The Re-
spondent excepts to judge's failure to defer to the
arbitration award which found that, on 23 June
1980, employee Arwood actually quit his employ-
ment rather than drive his assigned truck, which he
claimed was too noisy and hurt his ears. In support
of its exceptions, the Respondent submits that the
judge refused to defer to the arbitration award be-
cause he merely disagreed with the arbitrator's fac-
tual findings. The Respondent also asserts that the
General Counsel did not meet his burden of proof
that deferral is not warranted in this case. For the
reasons set forth below, we find merit in the Re-
spondent's contentions.
In Olin Corp., the Board reaffirmed its commit-
ment to the standards set forth in Spielberg Mfg.
Co.,' which held that the Board would defer to an
' 112 NLRB 1080 (1955)
559
arbitration award where the proceedings appear to
have been fair and regular, all parties have agreed
to be bound, and the decision of the arbitrator is
not clearly repugnant to the purposes and policies
of the Act. In addition, the Board majority also
clarified its position with respect to the Raytheon
Co.2 requirement that the arbitrator must have con-
sidered the unfair labor practice issue. Under the
revised standard, an arbitrator has adequately con-
sidered the unfair labor practice issue if the con-
tractual issue is factually parallel to the unfair labor
practice issue, and the arbitrator was presented
generally with the facts relevant to resolving the
unfair labor practice. With regard to the inquiry
into the "clearly repugnant" standard, Olin does
not require an arbitrator's award to be totally con-
sistent with Board precedent. Under Olin, the
Board will defer unless the award is "palpably
wrong," i.e., unless the arbitrator's decision is not
susceptible to an interpretation consistent with the
Act. The burden is on the party opposing deferral
to affirmatively demonstrate the defects in the arbi-
tral process or award.
The General Counsel asserts that deferral is inap-
propriate because (1) the arbitrator failed to treat
the contractual issues as factually parallel to the
unfair labor practice issues in this case; (2) the arbi-
trator was not presented with the facts relevant to
resolving the unfair labor practice or the contrac-
tual issues; and (3) the arbitrator's ultimate finding
of a voluntary quit by employee Arwood is palpa-
bly wrong. The only evidence relied on by the
General Counsel in support of his position was the
arbitrator's decision itself.
We find, contrary to the judge, that the arbitra-
tion award satisfies the requirements of Olin and
that the General Counsel failed to satisfy his
burden of proof espoused by Olin. As admitted by
the General Counsel, the statutory and contractual
issues in this case were factually parallel. Contrary
to the General Counsel's implication, Olin does not
require the arbitrator to make a specific finding
that the issues are parallel. The factual questions
before the arbitrator were coextensive with those
that would be considered by the Board in a deci-
sion on the statutory issues. These factual questions
were what prompted employee Arwood's depar-
ture from the jobsite on the day in question; what
occurred during the conversation between Arwood
and his supervisor shortly before his departure
from work that day; whether Arwood's departure
from work that day constituted a voluntary quit on
his part; whether Arwood was discharged and for
2 140 NLRB 883 (1963)
274 NLRB No. 79
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what reasons. In fact, the judge treated these factu-
al questions in resolving the statutory issues.
The General Counsel also failed to show that
facts generally relevant to the unfair labor practice
were absent from the record made before the arbi-
trator. The General Counsel and the judge incor-
rectly relied solely on the arbitrator's decision itself
to show what evidence was submitted to the arbi-
trator. With Olin's placement of an affirmative
burden of proof on the party opposing deferral, we
have indicated that the arbitrator's factual findings
are not equivalent to what record evidence actually
was submitted to the arbitrator. Thus, it is not nec-
essary for the arbitrator to recite evidence in a
written decision. Rather, the party seeking to avoid
deferral must establish that the facts generally rele-
vant to the unfair labor practice were not present-
ed to the arbitrator at some time during the pro-
ceeding. The General Counsel's introduction of the
award is insufficient to meet this burden. If any-
thing, the arbitrator's decision here tends to show
that the arbitrator was presented with essentially
the same evidence necessary for determination of
the unfair labor practice charge. This evidence in-
cluded the contract provisions granting employees
the right to refuse to drive unsafe equipment under
certain conditions, the medical condition of Ar-
wood's hearing, his refusal to wear ear defenders
prescribed by his physician, the condition of the
company truck to which Arwood was assigned, the
circumstances surrounding his departure from
work the day in question, and the events leading to
the termination of his employment.
The General Counsel observes that the arbitrator
stated in his decision that Arwood never offered to
return to work after the 23 June 1980 confronta-
tion, while the uncontradicted record evidence in
the unfair labor practice case indicated that on 25
June 1980 Arwood did unconditionally express his
desire to return to work and he was not allowed to
do so. The General Counsel therefore urges us to
abstain from deferring to the arbitration award be-
cause a more complete factual record may have re-
sulted in an opposite conclusion.
The Board is not prepared to engage in conjec-
ture as to which way an arbitrator's decision may
have shifted had certain additionally allegedly rele-
vant facts come to light. In fact, that is not even
our province, for the "Board's involvement is not
in the nature of an appeal by trial de novo."3 Our
role is to ascertain whether the arbitrator was pre-
sented generally with the relevant facts necessary
to consider the unfair labor practice. We are satis-
fied that this arbitrator was presented generally
3 Badger Meter, Inc, 272 NLRB 824, 826 (1984)
with those facts, which is exactly what Olin re-
quires.
The General Counsel's argument on this point
amounts to a request that the Board substitute the
judge's findings on this matter, which are arguably
more favorable to the General Counsel's position
and which are at odds with those of the arbitrator.
In Olin, we stated clearly that we will not permit
the party opposing deferral to pick and choose be-
tween the judge's and arbitrator's factual findings.
Additionally, the General Counsel has failed to
show that the arbitration award is clearly repug-
nant to the Act. Both the General Counsel and the
judge have mistaken the Board's role in this matter.
Because the General Counsel and the judge would
have decided the contractual issues in this case dif-
ferently than the arbitrator did, they have ad-
vanced that deferral is inappropriate. The Board's
review under Olin does not contemplate that the
Board will substitute its judgment for that of the
arbitrator in resolving contractual issues. Rather,
we will inquire only whether the arbitrator ade-
quately considered the unfair labor practice issues
which, in this case, we have concluded was satis-
factorily done.
Accordingly, we shall defer to the grievance ar-
bitration award and dismiss the complaint in its en-
tirety.4
ORDER
The complaint is dismissed.
4 In light of our decision to defer to the arbitration award, we deem it
unnecessary to rule on the merits of the 8 (a)(1) allegation
SUPPLEMENTAL DECISION
JOHN H WEST , Administrative Law Judge . In my de-
cision in this proceeding, issued March 31, 1982, it was
concluded , as here pertinent , that "[i]nasmuch as the ar-
bitrator did not rule on the unfair labor practice issue,
Respondent 's . . . request for deferral must be denied.
Suburban Motor Freight , 247 NLRB 146 ( 1980)."
By Order dated February 27, 1984 , the National Labor
Relations Board (the Board) remanded the proceeding
indicating that Respondent filed exceptions and a sup-
porting brief (May 14, 1982) and the General Counsel
filed an answering brief (May 25, 1982); that on January
6 and 19 , 1984, it issued its decisions in Meyers Industries,
268 NLRB 493 and Olin Corp ., 268 NLRB 573 ( 1984),
respectively; and that, in light of these Board decisions, a
supplemental decision should be prepared herein and
served on the parties.
By Order dated March 23, 1984, the parties were invit-
ed to submit position statements regarding the above-de-
scribed Board decisions and the United States Supreme
Court 's decision in NLRB v. City Disposal Systems, 104
S.Ct. 1505 (1984), which adopted by a 5 to 4 decision the
MARTIN REDI-MIX
Board 's rationale ' expressed in Interboro Contractor, 157
NLRB 1295 ( 1966), enfd . 388 F .2d 495 (2d Cir. 1967),
which rationale is described below
Both the General Counsel and Respondent correctly
point out in their position statements that Meyers Indus-
tries, supra , does not apply to the instant proceeding
since here, as in City Disposal Systems, supra , there is a
labor agreement and the Board in Meyers Industries,
supra, distinguished that case from a situation where a
collective -bargaining agreement exists.
A majority of the Board in Olin Corp., supra, conclud-
ed that it would require the party seeking to have the
Board reject deferral and consider the merits of a given
case show that specified standards for deferral, treated
infra, have not been met . As indicated by the Board, the
party seeking to have the Board ignore the determination
of an arbitrator has the burden of affirmatively demon-
strating the defects in the arbitral process or award To
the extent that Suburban Motor Freight, supra , provided
for a different allocation of burdens in deferral cases, it
was overruled.
Regarding the aforementioned standards , the Board'
stated in Olin Corp, supra at 574:
Accordingly , we adopt the following standard
for deferral to arbitration awards. We would find
that an arbitrator has adequately considered the
unfair labor practice if (1) the contractual issue is
factually parallel to the unfair labor practice issue,
and (2) the arbitrator was presented generally with
the facts relevant to resolving the unfair labor prac-
tice.6 In this respect, differences, if any, between
the contractual and statutory standards of review
should be weighed by the Board as part of its deter-
mination under the Spielberg [Mfg. Co., 112 NLRB
1080 (1955 )] standards of whether an award is
"clearly repugnant " to the Act And, with regard to
the inquiry into the "clearly repugnant" standard,
we would not require an arbitrator 's award to be
totally consistent with Board precedent Unless the
award is "palpably wrong,"7 i e., unless the arbitra-
tor's decision is not susceptible to an interpretation
consistent with the Act, we will defer.
6 This approach is supported by Board precedent See, e g ,
Kansas City Star Co, 236 NLRB 866 (1978), Atlantic Steel Co, 245
NLRB 814 (1979)
7 International Harvester Co, 138 NLRB 923, 929 ( 1962), affd
sub nom Ramsey v NLRB, 327 F 2d 784 (7th Or 1964), cert
denied 377 U S 1003 (1964), quoted in Member Penello 's dissent-
ing opinion in Douglas Aircraft Co, 234 NLRB 578, 581 ( 1978),
enf denied 609 F 2d 352 (9th Cur 1979)
In her position statement , the General Counsel argues
that the instant case is not subject to deferral under Olin
Corp., supra for:
While the contractual issue should have been fac-
tually parallel to the unfair labor practice issue in
the instant case, the arbitrator failed to treat it as
such and, further, was not presented with the facts
relevant to resolving the unfair labor practice. As a
result, the arbitrator's decision is palpably wrong.
There was no record testimony as to the arbitration
561
proceeding and, therefore, the only evidence as to
the facts presented to and considered by the arbitra-
tor is the decision itself The arbitrator addressed
solely the issue of whether [the alleged discrimina-
tee Robert] Arwood voluntarily quit and that was
done in a vacuum without any reference to the rele-
vant contract provision which allows employees to
refuse to drive unsafe trucks . In addition , in consid-
ering the issue of a voluntary quit, the arbitrator did
not have certain crucial facts before him as revealed
by the record testimony in the instant case. While
the arbitrator stated in his decision that Arwood
never offered to return to work after June 23,
[1980], the uncontradicted record evidence in the
instant case indicated that on June 25 [1980]
Arwood unconditionally expressed his desire to
return to work and he was not allowed to do so.
The arbitrator relied heavily in his finding of a vol-
untary quit on Arwood's supposed failure to offer
to return to work where an accurate factual record
may have resulted in an opposite conclusion. The
fact that Arwood discontinued wearing ear defend-
ers was mentioned by the arbitrator without any in-
dication that he was presented with the reason for
the discontinuance [The reason was given in the
record made herein ] , a fact which may have influ-
enced the arbitrator 's decision and is an important
fact in determining Arwood's reasonableness in the
context of the unfair labor practice issue
The arbitrator's decision and finding of a volun-
tary quit must be considered palpably wrong. The
arbitrator ignored the contractual provision which
allowed Arwood to refuse to drive a truck he rea-
sonably considered to be unsafe. The arbitrator al-
lowed the Respondent to convert Arwood's refusal
to drive pursuant to that contract provision to a
voluntary quit merely by stating that if he refused
to drive the truck he would be considered a volun-
tary quit Clearly, such an approach would subvert
the intent of such a contract clause and the applica-
tion of the Interboro doctrine.'
It is Respondent 's position that under Olin Corporation,
supra, the instant case must be dismissed for assertedly
this case was fully and fairly arbitrated under the in-
volved agreement and the arbitrator found the involved
truckdriver 's termination to be a voluntary quit. Re-
spondent contends that since the arbitrator's decision is
not clearly repugnant to the purposes of the Act, defer-
ral is proper in this case
In the alternative, Respondent takes the following po-
sitions:
1 As pointed out by the Supreme Court in City Disposal Systems, supra,
the Board ' s interboro doctrine recognizes as concerted activity an individ-
ual employee 's reasonable and honest invocation of a right provided for
in his collective -bargaining agreement There , as here , a truckdriver re-
fused to drive a specific truck and there was a collective -bargaining
agreement with a clause providing for the right to refuse to drive an
unsafe truck There the Supreme Court accepted the Board 's conclusion
that the truckdriver was engaged in concerted activity
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even if this case is not deferred, however, the
Respondent had not violated . . . [section] 8(a)(1)
of the Act. The Supreme Court's decision in City
Disposal established that an employee's "honest and
reasonable invocation of a collectively bargained
for right constitutes concerted activity." Arwood's
refusal to utilize the safety device his doctors indi-
cated he should use, and his failure to use the pro-
cedures contained in the labor agreement for resolv-
ing safety matters is clear evidence that Arwood
was not asserting a claim under the contract when
he refused to drive Truck 47. Thus, Arwood's ac-
tivity was not an honest or reasonable invocation of
the labor agreement to protest a collective safety
matter, but an individual refusal aimed at obtaining
his own objective.
Finally, in City Disposal, the Court held that
while the refusal to work based upon a provision in
a labor agreement may constitute concerted activi-
ty, such activity is not protected if the labor agree-
ment `limits the methods' by which an employee
may raise his contract rights. The labor agreement
involved in this case clearly limited the methods by
which Arwood could assert his right to refuse to
operate equipment in an unsafe condition. Arwood
violated these provisions of the labor agreement
when he refused to drive Truck 47, and his actions
were thus unprotected under the Act.
In my opinion, deference should not be accorded to
the arbitrator's award in the instant proceeding. The ar-
bitrator concluded that the involved employee voluntariy
quit a job he held for 23 years during a confrontation he
had with the 23-year old son of the owner of the Com-
pany, Grant Martin. The evidence in this record demon-
strates that the arbitrator could not have had certain de-
terminative facts before him and, therefore, the record
which was developed before the arbitrator was inad-
equate for resolving the unfair labor practice Portions of
the arbitrator's analysis are as follows:
He [the truckdriver] said it [the truck] was noisy
and bothered his ears. Yet his own Doctor's letter
[U. Exh. 2] states that while he has a hearing loss,
high frequency in nature, that he could drive and
wear ear defenders. The record indicated that he
had earlier warn [sic] ear muffs for a period of one
month or so and discontinued using the ear protec-
tion.
The record demonstrated that the grievant did
not report back to his employer for work at any-
time since June 23rd. He did stop in on June 25 or
thereabouts for his paycheck but did not offer to go
to work
Realistically, the grievant's job with his employer
was to drive #47 which he had done for fifteen
years. From June 23rd to date he had not offered to
do so Other avenues under the contract were avail-
able to him, if he wished to protest why he would
not drive #47. He could have continued to work
and used the contract procedure if he considered
Truck #47 unsafe or not properly equipped. He,
even after a cooling off period, beyond,June 23rd,
has made no effort to return to work and drive his
regularly assigned Truck #47. He knew the compa-
ny's operating procedure as demonstrated by the
fact he drove Truck #47 for fifteen years.
From the Grievant's actions the Arbitrator con-
cludes that the grievant did quit his employment
voluntarily and that he was not unduly coerced or
discharged by the Company.
As noted in the March 31, 1982 decision herein, the in-
volved truckdriver, Arwood, ceased utilizing "ear
muffs," while driving the involved truck because he be-
lieved the device "blocked-out" traffic noise such as
horns, sirens, and police whistles, and the two-way radio
in his truck. He wore the device for approximately 4
months and ceased in August 1979, approximately 10
months before the above-described confrontation. One of
the experts called by Respondent in the trial herein testi-
fied that it is a very common problem in the industry for
employees to hesitate to wear hearing protection because
they believe they cannot hear. Arwood did not view the
wearing of ear muffs as a viable alternative and his belief
regarding the device cannot, in my opinion, be charac-
terized as unreasonable. Grant Martin did not expressly
consider this to be a viable alternative for there was no
indication that he even knew about Arwood wearing ear
muffs while operating the involved truck and Grant
Martin did not offer this as an alternative during the
above-described confrontation.
Regarding the above-described conclusion of the arbi-
trator that Arwood did not offer to go to work after
June 23, 1980, it was noted at page 23 in the March 31,
1982 decision that
Respondent did not deny Arwood's testimony that
after seeing the doctor he returned to Respondent's
facility on June 25, [1980] and spoke with Respond-
ent's regular dispatcher, Eallonardo, who placed
Arwood's starting time on the driver's seniority list
and told Arwood to report in for work at 7 a.m. on
June 26, [1980]. The record does not contain any
evidence that Arwood's desire to return to work on
June 26 was in any way qualified. Respondent does
not deny that it, through Eallonardo, then called
Arwood and told him not to come to work on June
26.2
The arbitrator's conclusion that Arwood "could have
contined to work and used the contract procedure if he
considered Truck 47 unsafe or not properly equipped"
must be based on his other conclusion that the truck
could have been operated with ear muffs and the conclu-
sion that if Arwood was willing to work he could have.
Respondent did not offer to let Arwood drive another
truck on June 23, 1980, or at any time thereafter. Conse-
2 It is noted that the arbitrator at p 7 of his opinion and award (at-
tached to ALJ Exh 1) indicated that "the Company states [Arwood]
on June 23 left the jobsite and did not again report for work " The
arbitrator's opinion and award also indicated that the attorney who ap-
peared herein for Respondent appeared there for the Company No attor-
ney appeared for the Union in the arbitration proceeding
MARTIN REDI-MIX
quently, the only way Arwood could have continued to
work on June 23, 1980, was to drive truck 47. As indi-
cated above, Arwood believed he could not hear ade-
quately with the ear muffs on. Since Respondent would
not let Arwood return to work, there is no way that he
could have continued to work after June 23
In my opinion the arbitrator was not presented with
the facts relevant to resolving the alleged unfair labor
practice and he failed to treat the contractual issue in-
volved herein. His award is palpably wrong.3
9 The United States Supreme Court in Gary McDonald Y City of West
Branch, No 83-219 (Apr 18, 1984), unanimously acknowledged that
there are specified shortcomings in the arbitration process There it was a
563
It is also my opinion that nothing in City Disposal Sys-
tems, supra, requires a result different than that reached
in the March 31, 1982 decision.
Accordingly, the findings, conclusions, remedy, rec-
ommended Order, and appendix of the March 31, 1982
decision herein are affirmed
question of judicial factfinding versus arbitral factfinding while in cases
such as the one at hand it is a question of arbitral factfinding versus
quasi-judicial factfindmg There the Court was also dealing with a differ-
ent statute Nonetheless, some of the observations made by the Court ap-
parently would apply equally to judicial and quasi-judicial proceedings
Here, however, we are not dealing with the arbitral process in general
but rather a specific arbitration award , the determinations reached herein
are based on that specific arbitration award