Oakland Scavenger Co.

National Labor Relations Board - Board Decisions

Mar 15, 1979

241 N.L.R.B. 1 (N.L.R.B. 1979)

OAKLAND SCAVENGER COMPANY
Oakland Scavenger Company and Joseph J. Jelencic,
Jr. Case 32-CA-242
March 15, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On October 23, 1978, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, General Counsel filed ex-
ceptions and a supporting brief, and Respondent filed
an answering brief.
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 as
modified herein and to adopt his recommended Or-
der.
We do not agree with the Administrative Law
Judge's conclusion that deferral to the arbitration
award is proper in this case. The record, which in-
cludes the record of the arbitration proceeding itself,
clearly establishes that the unfair labor practice issue
before the Board-whether Respondent unlawfully
discharged the Charging Party, Joseph Jelencic, in
violation of Section 8(a)(1) and (3) of the Act-was
neither presented to nor considered by the arbitrator.
Under such circumstances, we will not defer.2
I The Administrative Law Judge's Decision contains several inadvertent
errors. In sec. IA, the Administrative Law Judge states that Jelencic picked
up trash on June 17, 1977, whereas the record establishes that Jelencic was
discharged on that date prior to picking up any trash. In sec. I,BI, the
citation for John Sexton & Co. should be 217 NLRB 80. Also in sec. I,B,I,
the Administrative Law Judge states that in August 1976 Respondent and
the Union settled a grievance filed by Jelencic, whereas the record establishes
that this grievance was settled in August 1975. Also in sec. I,B,1, the refer-
ence to Jackson School should be to Franklin School. In sec. I,B,2, the
citation to Gateway Coal Co. v. United Mine Workers of America, et al.,
should be 414 U.S. 368.
2 Raytheon Company, 140 NLRB 883 (1963). Contrary to the understand-
ing of the Adminstrative Law Judge, Raytheon has not been "overruled" by
the Board's decision in Electronic Reproduction Service Corporation, 213
NLRB 758 (1974). As is apparent from a closer reading of Electronic Repro-
duction. the Board majority in that case in fact relied on Raytheon as its case
in point for carving out an exception to the basic principle set forth in
Electronic Reproduction. Moreover, the Board has continued to rely on Ray-
iheon for refusing to defer to an arbitrator's award where, as here, the unfair
labor practice issue was not considered in the arbitration proceedings. See,
e.g., most recently Varied Enterprises, Inc., d/bla Private Carrier Personnel,
240 NLRB No. 12 (1979); Gould Inc., Switchgear Division, 238 NLRB No. 88
(1978); United Stanford Employees, Local 680, Service Employees Interna-
tional Union, AFL-CIO (The Leland Stanford Junior University), 232 NLRB
326 (1977). Cf. Pincus Brothers, Inc.--Maxwell, 237 NLRB 1063 (1978).
In any event, Member Jenkins and Member Murphy would not rely on
Electronic Reproduction, inasmuch as they do not subscribe to its principle
that deferral is essential where an arbitrator could have decided an issue
even if "it was not in fact presented for determination." The Mason and
Dixon Lines, Inc., 237 NLRB 6 (1978).
Member Truesdale, who agrees that Raytheon is controlling here, finds it
unnecessary to comment on the merits of Electronic Reproduction.
The arbitrator did consider the statutory question
of whether the work which Jelencic refused to per-
form constituted "abnormally dangerous conditions
for work" within the meaning of Section 502 of the
Act,3 as interpreted by the Supreme Court in Gateway
Coal Co. v. United Mine Workers of America, et al.,
414 U.S. 368 (1974). He concluded that the work in
question did not come within the scope of that sec-
tion. As indicated above, the Administrative Law
Judge deferred to the arbitrator's conclusion on this
question. However, in the alternative, if the Board
disagreed with that deferral, the Administrative Law
Judge also made an independent evaluation of the
record evidence on this matter and concluded, in
agreement with the arbitrator, that the work in ques-
tion was not "abnormally dangerous." We adopt this
conclusion of the Administrative Law Judge, set out
at footnote 9 of his Decision, and thus find that Jelen-
cic's refusal to handle the burlap sacks was not justi-
fied under Section 502.
Also, we agree with the Administrative Law Judge,
for the reasons set out in section I,B,1, of his Deci-
sion, that Jelencic's refusal to handle the burlap sacks
lost whatever protection it may have had under Sec-
tion 7 of the Act when, without justifiable reason, he
disrupted and interfered with the procedure for
gradually eliminating the use of such burlap sacks
which Respondent and the Union had previously
agreed upon in resolving Jelencic's grievance. Ac-
cordingly, as Jelencic's conduct was neither protected
by Section 7 nor justified under Section 502, we con-
clude that Respondent did not violate Section 8(a)(l)
and (3) by discharging Jelencic for engaging in such
conduct.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I Sec. 502 of the Act provides, in relevant part:
IN]or shall the quitting of labor by an employee or employees in good
faith because of abnormally dangerous conditions for work at the place
of employment of such employee be deemed a strike under this Act.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Adiministrative Law Judge: The
hearing in this case was held on August 7, 1978, and is
based upon an amended unfair labor practice charge filed
by Joseph Jelincic, Jr., on June 28, 1977, and a complaint
241 NLRB No. I
I
D[ECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued on May 23, 1978, on behalf of the General Counsel
of the National Labor Relations Board, herein called the
Board, by the Board's Regional Director for Region 32,
alleging that Oakland Scavenger Company, herein called
Respondent, has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act, herein
called the Act, by discharging Jelincic on June 17, 1977,
because of his union or protected concerted activities.' Re-
spondent filed an answer to the complaint which denies the
commission of the alleged unfair labor practices.
Upon the entire record, and having considered the post-
hearing briefs submitted by the General Counsel and Re-
spondent, I make the following:
FINDINGS OF FA('C
I. II Ai.I.E(iEI) UNFAIR LABOR PRACTII(CES
A. The Facts
Briefly stated the basic facts involved in this case, which
are not in dispute, are as follows:
Respondent picks up garbage from customers located in
and around the city of Oakland, California. The Interna-
tional Brotherhood of Teamsters, Chauffeurs and Ware-
housemen, Local Union No. 70, herein called the Union.2
represents Respondent's employees. Article 14 of the collec-
tive-bargaining agreement between Respondent and the
Union, in effect during the times material to this case, pro-
vides that a grievance over an employee's discharge is sub-
ject to compulsory binding arbitration and that all other
contractual grievances, although not subject to arbitration,
must be processed through a four-step grievance procedure
before the Union is allowed to exert any kind of economic
pressure. The pertinent portions of article 14 are as follows:
ARII('I.E 14. (RIEVAN(Ii PRO('EI)URE:
Section I. Conciliation: A grievance by any em-
ployee, the Union or the Company, shall be limited to
any controversy, complaint or misunderstanding aris-
ing as to the interpretation or observance of any of the
provisions of this Agreement.
The employee may discuss any grievance with his
Shop Steward, Chief Steward and Supervisor. If a set-
tlement cannot be reached, the Business Agent of the
Union and the Chief Steward and the Employer shall
discuss said grievance. If it is not resolved at this point,
it shall be reduced to writing and submitted to a formal
grievance panel comprised of two (2) representatives of
the Union, other than the Business Agent of the Ter-
minal, and two (2) representatives of the Employer,
other than the representative presenting the case. If, at
this point. no settlement is reached, it will be submitted
to a Panel to include two (2) representatives from the
Union and one (1) selected by the Union, who is not
an official of Teamsters Local No. 70, and two (2) rep-
lThe record establishes and Respondent admits that Respondent is an
employer engaged in commerce within the meaning of Sec. 2(6) and (7) of
the Act and meets the Board's applicable discretionary jurisdictional stan-
dard.
2 The Union. which is not a party to this proceeding, is admittedly a labor
organization within the meaning of Sec. 2(5) of the Act.
resentatives of the Company and a third party to be
selected by the Employer.
In the event of a deadlock, the Union and the Em-
ployer shall be allowed all legal economic recourse,
including strike or lockout.
In the event a discharge is deadlocked the matter
shall be referred to an arbitrator as provided for in
Article 14, Section 3 of this Agreement.
Article 17 of the applicable collective-bargaining agree-
ment, in sections 15 and 17, provides, in pertinent part, that
"[e]mployees are not required to lift unusually heavy loads
. or in any other way required to do work that may be
injurious to their health" and "the Employer will observe
all State and Federal Safety regulations pertaining to . . .
the health and safety of his employees."
Respondent picks up the trash from the approximately
100 public schools in Oakland, California. Initially, during
the time material herein, the schools' trash was thrown into
metal bins lined with burlap, in addition to the usual 30-
gallon garbage cans. The front of the bins opened so Re-
spondent's employees could grasp the four corners of the
burlap and form a sack which was dragged from the bin to
the garbage truck and lifted approximately 2-1/2 feet and
dumped into the truck's hopper. These sacks weigh from
100 to 150 pounds. Together the three-man crew assigned
to a route would haul a sack to the garbage truck. If a sack
was too heavy for the three men to handle, some of the
contents were removed by use of a pitchfork and deposited
into a container carried for this purpose.
Early in 1975 Jelincic, an employee of Respondent, com-
plained to the Union about the aforesaid burlap sacks.
Jelincic complained that they were too heavy, often con-
tained wet garbage, occasionally contained glass, and many
times were rat infested. On March 20, 1975, pursuant to the
terms of the contractual grievance procedure, the Union
wrote to Respondent as follows:
Local 70 is filing a grievance against your company
for repeatedly refusing to correct an unsafe method of
picking up garbage.
The containers used at the Oakland schools are lined
with burlap sacks. These sacks must be pulled out in
order to be dumped and they often contain wet gar-
bage and are rat infested. In addition, they are often
excessively heavy.
We have had some of your employees injured as a
result of having to handle these unsafe containers and
feel that this method of picking up garbage is in viola-
tion of Article 17, Sections 15 and 17 [of the collective-
bargaining contract).
This case shall be placed on the next agenda of the
Grievance Committee for disposition.
This grievance was placed on the grievance agenda and
discussed at the grievance meeting held August 6, 1975, at
which time Respondent's representatives, in reply to the
grievance, informed the Union's representatives that Re-
spondent would remedy the complaint by using front-end
loaders to dump the schools' garbage bins, thereby elimi-
nating the need for employees to grapple with the burlap
sacks, but indicated that this change in operations would
not be effectuated immediately at all of the schools inas-
2
OAKLAND SCAVENGER COMPANY
much as there were approximately 100 schools involved
and because a similar problem existed at the several Oak-
land public housing projects, over which the Union had
filed an identical grievance: and that since conditions were
a lot worse at the housing projects, Respondent intended to
give that situation priority over the schools. Respondent's
response satisfied the Union which withdrew its grievance.
During the remainder of 1975, 1976, and 1977 Respon-
dent gradually replaced the burlap sacks at the Oakland
schools with drop boxes which were unloaded by an em-
ployee operating a front-end loader. By June 1977, when
the events which resulted in Jelincic's discharge took place.
of the approximately 100 schools, only 7 had not been con-
verted to the new system. One of these schools, the Franklin
School, had not been converted to the new system because
of the inability of the Oakland school district and the Oak-
land recreation and park department to negotiate an ease-
ment for a driveway which a front-end loader could use.
The Union was fully aware of the gradual manner in which
Respondent was remedying the grievance concerning the
burlap sacks being used at the schools. In fact, the Union
was actively policing Respondent's compliance with the
agreement which had resulted in the Union's withdrawal of
the grievance and, prior to the events leading to Jelincic's
termination, the Union's chief steward, Rose, had notified
the Union's stewards and various employees that the em-
ployees should continue to handle the burlap sacks at the
schools which still used them. Rose explained to the stew-
ards and to the employees that it was up to Respondent and
the Union to resolve this problem, not the employees by
self-help. Specifically, in the case of the Franklin School,
the school involved in this case, Rose visited the school and
spoke to a representative of the school to make sure that
Respondent's delay in replacing the burlap sacks there with
the new disposal system was based on a legitimate excuse.
In sum, the record establishes that the Union accepted the
reasons offered by Respondent for the delay in fully imple-
menting its agreement to replace the burlap sacks at all of
the schools and, because of this, the Union voiced no com-
plaints to Respondent concerning the delay, was satisfied
that Respondent was complying with the terms of the
agreement, and advised the Union's stewards and various
employees that the employees were to continue to handle
the remaining burlap sacks.
Jelincic, during the year following the Union's with-
drawal of the burlap sack grievance, was assigned to pick
up trash at several schools that still used burlap sacks; once,
in the latter part of 1975, he was cut by a piece of glass
while handling a sack. In due course, the sacks at these
locations were replaced by drop bins which were unloaded
by front-end loaders. Thus Jelincic, for over a year prior to
the events which resulted in his discharge, was not assigned
to a route which required that he handle burlap sacks at a
school.
On June 10, 1977, Jelincic was assigned to a work route
which included the Franklin School at which, as described
supra, the burlap sacks had not been replaced. That day
Jelincic performed all of the assigend work at the Franklin
School including the dumping of two burlap sacks. At the
end of the workday, he notified Union Representative
Wright that he felt the use of the burlap sacks was unsafe
and that if he was assigned to work at the Franklin School
in the future, he did not intend to handle the sacks because
they were unsafe. Wright told him "go ahead if that is what
you are going to do," but told him that if he did refuse to
perform this work to be sure and give Respondent prior
notification "so that you don't get yourself boxed into a
corner and subject yourself to whatever course of action the
company might choose to take."
The following week Jelincic was again assigned to the
route which included the Franklin School, and on June 13.
15, and 17, 1977, picked up the trash which was in the
garbage cans at this school but refused to handle the trash
in the two burlap bags. Jelincic's position, which he stated
to the representatives of Respondent, was that the burlap
sacks were unsafe and, in view of the disposition of his prior
grievance on the subject, did not feel Respondent that could
require him to perform that type of work.' The result of his
refusal to perform this portion of his work at the Franklin
School was that on June 17 he was notified by Respondent
that he was discharged for "gross insubordination," specifi-
cally because of his refusal to comply with the Respon-
dent's orders to perform this work.
On June 17, immediately after his discharge, Jelincic
went to the Franklin School where his replacement and the
two other employees assigned to the work crew were about
to dump the burlap sacks into the truck. Jelincic asked his
replacement, David Calegari, for his name and union card.
When Calegari refused to give him this information, Jelin-
cic stated "I'm not after you" but was "after" Armando
Rossi, Respondent's representative who had discharged him
earlier that day.
Soon after his discharge, Jelincic, pursuant to the griev-
ance-arbitration provision of the applicable collective-bar-
gaining contract, grieved that he had been unjustly dis-
charged. The Union pressed this grievance to arbitration. A
hearing on the grievance was held on July 18, 1977, and the
arbitrator issued his decision on November 2, 1977, uphold-
ing the validity of the discharge.
B. Analysis and Conclusions
1. The contention that Jelincic's conduct which resulted
in his discharge was protected by Section 7 of the Act
There is no contention or evidence that Respondent, in
discharging Jelincic, retaliated against him for having en-
gaged in protected concerted activity or union activity. In
urging that Jelincic's discharge was proscribed by Section
8(a)(1) and (3) of the Act, the General Counsel at page 5 of
his post-hearing brief advances the following theory:
At the time of his discharge Jelincic was engaged in a
IOn June 14, 1977, at the request of the Respondent, Union Chief Stew-
ard Rose met with Respondent's officials and Jelincic to discuss this matter.
Rose's stated position was that he would have to look into the matter and
determine what the situation was concerning the schools which still had
burlap sacks, inasmuch as there had been a new collective-bargaining con-
tract negotiated since the resolution of Jelincic's 1975 grievance. Rose also
informed Jelincic that since he. Rose, intended to handle the matter it would
be unnecessary for Jelicic to grieve about the matter. The question of
whether Jelincic should perform the work in question was never directly
addressed by Rose, inasmuch as when Rose asked whether Jelincic had re-
ceived an order to perform the disputed work Jelincic answered in the nega-
tive.
3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protected activity in asserting a contract right (Article
17, Sections 15 and 17) which prohibited employees
from performing work under unsafe conditions, that is,
employees were excused from picking up burlap bags
which under the contract the parties had previously
agreed were unsafe. John Sexton & Co., 217 NLRB 80;
Anaconda Aluminum Company, 160 NLRB 35. By dis-
charging Jelincic for his refusal to pick up the burlap
sacks, Respondent was failing to honor a mutually
agreed upon arrangement consistent with the collective
bargaining agreement. Newspaper Printing Corp., 221
NLRB 811, 824. See also, Southwestern Bell Telephone
Company, 212 NLRB 43, wherein the facts bear a
strong resemblance to those in the instant case.
I am of the opinion that Jelincic's refusal to handle the
burlap sacks at the Franklin School, on its face, constituted
an attempt to enforce the safety provision of the governing
collective-bargaining agreement in the interest of all em-
ployees covered by the agreement and as such constituted
protected concerted activity within the meaning of Section
7 of the Act.4 Roadway Express, Inc., 217 NLRB 278 (1975),
and John Sexton & Co., Division of Beatrice Food Co., 218
NLRB 80 (1975). However, it is my further opinion that
Jelincic's conduct lost the protection of the Act because it
was in derogation of his duly designated bargaining repre-
sentative.
As described supra, the applicable collective-bargaining
agreement herein precludes the Company's employees from
refusing to work as a means of resolving grievances pertain-
ing to unsafe working conditions5 until their collective-bar-
gaining agent, the Union, exhausts the contractual griev-
ance procedure. s In August 1976 Respondent and the
In view of my ultimate disposition of this case, I have not considered
Respondent's contention that Jelincic acted in bad faith when he engaged in
the conduct involved herein or the question of whether Jelincic's conduct lost
the protection of the Act either because it was in derogation of a contractual
no-strike clause or because it was a part of a plan of action wherein Jelincic
sought to maintain the benefits of remaining in a paid employee status while
refusing to perform all of the work he was hired to do.
5 In concluding that employees' grievances concerning unsafe working
conditions are covered by the contractual no-strike clause, I have considered
that art. 17 of the contract states that "[elmployees are not required to lift
unusually heavy loads or in any other way required o do work that may be
inrurious to their health." [Emphasis added.] Nevertheless, I am of the opin-
ion that this provision is insufficient to create an exception to the plain
language of the general no-strike clause for this class of grievances. This
conclusion is reinforced by the fact that art. 17 specifically excuses employ-
ees in only one type of situation from performing working assignments which
they feel are unsafe. Art. 17 in this respect states that "li]f a customer repeat-
edly refuses to conform to the weight limitations, the employee will be per-
mitted to refuse to service that account, provided that he has first notified the
employee in charge of the route." There is no language in this article or
elswhere in the agreement which permits employees to otherwise refuse to
perform work involving alleged unsafe or unhealthy conditions.
'In reaching this conclusion, I have considered International Union of
Operating Engineers, Local Union 18, AFL-CIO (Davis-McKee, Inc.). 238
NLRB No. 58 (1978) (Member Penello dissenting), and do not read this deci-
sion to mean that even where, as in the present case, a union has consented to an
express contract provision banning strikes until the contractual grievance proce-
dure is exhausted that such a limited no-strike provision is insufficient to
establish a waiver of the employees' right to engage in work stoppages during
the period the parties are attempting to resolve a dispute peacefully through
the contractual grievance machinery. An extension of Operating Engineers,
Local Union 18, AFL-CIO (Davis-McKee), to the instant situation would be
contrary to the policy of the Act which seeks to encourage industrial peace
through the full utilization of contractual grievance procedures. Sec. 203(d)
of the Labor Management Relations Act, 1947, as amended. William E.
Arnold Co. v. Carpenters District Council of Jacksonville and Vicinity, et at.,
Union, using the grievance procedure, reached agreement
over a grievance filed by Jelincic complaining about the use
of burlap sacks in the Oakland schools. Respondent agreed
to replace the sacks with a mechanized system of dumping
the trash and agreed that this new system would be in-
stalled in all of the schools over an unspecified period of
time. Pursuant to the agreement Respondent, by June 1977,
had removed the burlap sacks from all but 7 of the approxi-
mately 100 schools involved. The Union was fully aware of
the gradual manner in which Respondent was replacing the
burlap sacks and, in particular, knew that the sacks were
still being used at the Franklin School, yet was satisfied that
Respondent was complying with their agreement. In fact,
the Union instructed its stewards as well as some employees
that the employees were to continue handling the burlap
sacks at schools where the sacks were still being used, ex-
plaining that it was up to the Union's and Respondent's
officials to resolve this problem, not the employees by self-
help.
It is clear, as set forth above, that when Jelincic refused
to handle the burlap sacks at the Jackson School there was
an agreement between Respondent and the Union which
had resolved Jelincic's previous grievance and permitted
Respondent to continue using these sacks at that school
until it could replace them. Jelincic expressly repudiated
this agreement in favor of economic action, a course of
conduct specifically rejected by the Union. Under these cir-
cumstances Jelincic's activity involved a "disagreement
with, repudiation or criticism of, a policy or decision previ-
ously taken by the Union" (N.L.R.B. v. R. C. Can Com-
pany, 328 F.2d 974, 979 (5th Cir. 1964)), and, accordingly
does not warrant the protection of the Act. I recognize that
the ultimate objective of Jelincic's activity coincided with
the Union's, however, the Board will nevertheless find his
conduct unprotected if it is in contravention of a final and
official union position. Sunbeam Lighting Company, Inc.,
136 NLRB 1248, 1253 (1962); Lee A. Consaul Co., Inc., et
al., 175 NLRB 547, 549 (1969). This is what occurred in this
case. Jelincic's conduct was in derogation of the Union's
agreement with Respondent which permitted Respondent
to use burlap sacks at the Franklin School until it could
replace them. Thus, it is plain that Jelincic's refusal to han-
dle these sacks was contrary to the Union's 'final action" on
the grievance and "occurred in circumstances which indi-
cate actual prejudice to the integrity of the collective-bar-
gaining relationship." Lee A. Consaul Co., Inc., supra at
549. Contrary to the Union's good-faith effort to resolve the
problem of the burlap sacks through the contractual griev-
ance procedure, Jelincic chose to ignore this procedure and
the agreement between the parties. Instead he chose to re-
sort to economic self-help. I am of the opinion that to ex-
tend the protection of the Act to Jelincic's activity would be
to seriously weaken the entire concept of orderly collective
417 U.S. 12, 16-17 (1974). It is clear that the parties intent in including the
instant no-strike provision in their contract was to allow the stipulated
means of settling disputes, as set forth in the contractual grievance machin-
ery, an opportunity to resolve a dispute before the employees used economic
force. To hold that the instant limited no-strike provision does not preclude
employees' work stoppages over a grievance while the grievance is being
processed though the contractual grievance procedure would not only be
contrary to the intent of the parties to the contract, but also would under-
mine the statutory policy which seeks to encourage industrial peace through
the full utilization of contractual grievance procedures.
4
OAKLAND SCAVENGER COMPANY
bargaining embodied in Section 9(a) of the Act. The policy
underlying Section 9(a) is to encourage collective bargain-
ing in the interests of promoting industrial peace and stabil-
ity. Medo Photo Supply Corp. v. N.L.R.B., 321 U.S. 678
(1944); J. 1. Case Co. v. N.L.R.B., 321 U.S. 332 (1944);
N.L.R.B. v. Allis-Chalmers Mfg. Co., et al., 388 U.S. 175,
180 (1967). Where, as here, the union and employer using
the contractual grievance procedure have negotiated a
peaceful solution to a problem, all interested parties-
union, employer and employees-should be encouraged in
every way to abide by the agreement and not to act in a
manner which undermines its effectiveness and stabilizing
influence. To hold otherwise would be to actively discour-
age collective bargaining.
It is for these reasons that I conclude that Jelincic's re-
fusal to handle the burlap sacks at the Franklin School was
conduct in derogation of his duly designated bargaining
representative; hence, it is unprotected.'
2. The contention that the Board should defer to the
decision of the arbitrator
The arbitrator, in upholding the validity of Jelincic's dis-
charge, viewed the issue before him as "whether or not the
discharge of Joseph J. Jelincic was in violation of the
Agreement." In deciding this issue the arbitrator viewed the
essential question to be whether the work which Jelincic
refused to perform constituted an "abnormally dangerous
conditions for work at the place of employment" within the
meaning of Section 502 of the Act as interpreted by the
Supreme Court of the United States in Gateway Coal Co. v.
United Mine Workers of America, et al., 414 U.S. 385
(1974). Upon reviewing the evidence he concluded that
Jelincic's contention that handling the burlap sacks at the
Franklin School would have been injurious to his health or
hazardous "is not factually sustained as being reasonable
based on this record." He also concluded that Jelincic's
postdischarge statement that he was "after" management
representative Rossi negated Jelincic's contention that his
refusal to perform the disputed work was based upon a
good-faith belief that the work was dangerous to his health
or safety. Finally, based upon the lack of objective evidence
to support a claim that the work in question was dangerous
to Jelincic's health or safety, and the evidence that indi-
cated Jelincic did not have a good-faith belief that this was
the case, the arbitrator concluded Jelincic's real reason for
refusing to handle the burlap sacks at the Franklin School
was his desire to challenge what he believed was Respon-
dent's failure to comply with the settlement of the 1975
grievance. Also, the arbitrator noted that the evidence indi-
cated the Union was satisfied with the manner in which
Respondent was implementing that agreement. In reaching
his decision, the arbitrator did not consider whether Jelin-
cic's conduct was protected by Section 7 of the Act, nor was
this question raised. The only unfair labor practice issue
7 In the light of the June 14, 1977, instructions given Jelincic by Union
Chief Steward Rose that Jelincic should forget his grievance because Rose
would handle the matter, I am of the view that Union Representative
Wright's June 10, 1977, comments to Jelincic, in response to his announce-
ment that he intended to refuse to handle the burlap sacks, are not sufficient
to establish that the Union adopted or sanctioned Jelincic's activity.
considered by the arbitrator was whether Jelincic's conduct
was "abnormally dangerous" as that term is used in Section
502 of the Act.
General Counsel, in opposition to Respondent's conten-
tion that the Board defer to the decision of the arbitrator,
urges that the arbitrator's award was clearly repugnant to
the Act within the meaning of Spielberg Manufacturing
Company, 112 NLRB 1080 (1955), because it does not con-
sider "the statutory principles involved in the protection of
employees in presenting grievances."
Under the Spielberg doctrine the Board will defer to an
arbitration award where "the proceedings appear to have
been fair and regular, all parties had agreed to be bound,
and the decision of the [Arbitrator] is not clearly repugnant
to the purposes and policies of the Act."" In the present case
the record reveals, and the parties do not dispute, that the
proceedings before the arbitrator were fair and regular and
that the parties were bound. Thus, the only issue before the
Board is whether the arbitrator's award is repugnant to the
Act. It is my opinion, for the reasons set forth herein, that
the award is not repugnant to the Act.
The essential unfair labor practice issue in this case, and
the central issue considered by the arbitrator, is the ques-
tion of whether the working conditions which prompted
Jelincic's refusal to work were "abnormally dangerous"
within the meaning of Section 502 of the Act. If this was the
case then Jelincic's conduct, which I have found lost its
statutory protection, was protected by virute of Section 502
and his discharge was illegal. Under these circumstances,
the fact that the other unfair labor practice issues which I
have discussed, supra, were neither presented to nor consid-
ered by the arbitrator does not make the arbitrator's deci-
sion an inappropriate one for deferral, provided that the
arbitrator's resolution of the question of whether the work-
ing conditions which prompted Jelincic's refusal to work
were "abnormally dangerous" is not clearly repugnant to
the Act. I am of the opinion that the arbitrator's evaluation
of the evidence before him, which is essentially the same
evidence before the Board in this unfair labor practice pro-
ceeding, is not clearly repugnant to the purposes of the Act.
The arbitrator applied the correct legal standard in deter-
mining whether the working conditions in dispute were
"abnormally dangerous" and his conclusion that the work
was not "abnormally dangerous" was not palpably wrong
ro unreasonable.'
112 NLRB at 1082. There is also a requirement, later added, for the
arbitrator to have considered the unfair labor practice issue and to have
ruled on it. Raytheon Comnpany, 140 NLRB 883 (1963). However, this re-
quirement was apparently overruled in Electronic Reproduction Service Cor-
poration, et a., 213 NLRB 758 (1974) (Members Fanning and Jenkins dis-
senting), where a Board majority held that deferral is appropriate where an
arbitrator could have decided an unfair labor practice issue even if it was not
in fact presented for determination.
I In the event that under the circumstances of this case-the failure of the
arbitrator to consider the several other unfair labor practice issues involved
herein- have erred in deferring to his award I shall consider whether the
record in this proceeding reveals "ascertainable, objective evidence support-
ing [Jelincic'sl conclusion that an abnormally dangerous condition for work
existled]" at the time Jelincic refused his work assignment. See Gateway Coal
Co., v. United Mine Workers of Amenrica, et at., 414 U.S. 385. 1 think not.
Jelincic did not look into the bins on the days in question to determine if the
sacks posed any threat to his health or safety. There is no evidence which
indicates that the sacks on those days posed any threat to his health or
safety. Dunng the several years burlap sacks were used at the schools, there
(Continued)
5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based upon the foregoing, I find that the arbitrator's
award is not repugnant to the policies of the Act; is. on its
face, fair and regular; has decided issues within the compe-
tence of the arbitrator: and was reached by a procedure to
which the parties have agreed to be bound. Accordingly, I
conclude that it will effectuate the policies of the Act to give
is evidence of only two employees injuring themselves while handling sacks;
Jelincic. who cut himself on a piece of' glass, and employee Sanchez, who
hurt his back while lifting a sack. Sanchez admitted that back injuries were a
normal occupational hazard and that he had hurt his back "very man)
times" performing other work on the job. Finally, the Union's Chief Steward
Rose testified, in substance, that the Union pressed Jelincic's initial grievance
over the burlap sacks in 1975, not because the Union considered the situ-
ation as unsafe or unhealthy, but because the Union wanted the Company to
use more modern methods so as to make work easier for the employees. Rose
further testified that during the several years Respondent used burlap sacks
at the schools and other locations, he had heard of only two instances where
employees had injured themselves while handling the sacks.
conclusive effect to the arbitration award and on that basis
shall recommend that the complaint be dismissed in its en-
tirety.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERO
The complaint is dismissed in its entirety.
'° 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.
6