Pinkertons, Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1984

270 N.L.R.B. 27 (N.L.R.B. 1984)

PINKERTON'S, INC.
Pinkerton's, Inc. and Local No. 71, International
Guards Union of America. Case 9-CA-18038
27 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 June 1983 Administrative Law Judge
Robert G. Romano issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the Administrative
Law Judge is adopted and the complaint is dis-
missed.
While we agree with the judge's finding that deferral to the arbitra-
tor's decision is appropriate, we have examined this proceeding in light of
the standards for deferral recently propounded in Olin Corp., 268 NLRB
573 (1984). In so finding, we specifically agree with the judge that this
case does not present questions of representation, accretion, or appropri-
ate unit concerning which the Board consistently has refused to defer.
See, generally, Williams Transportation Co., 233 NLRB 837 (1977), and
cases cited therein. Rather, we find, in agreement with the judge, that the
controversy in issue essentially is one of contract interpretation.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge. This
case was heard at Louisville, Kentucky, on July 22,
1982.' The charge was filed by Local No. 71, Interna-
tional Guards Union of America (herein Local 71), on
February 22 against Pinkerton's, Inc. (herein Respondent
Employer). Complaint thereon issued on March 25 alleg-
ing violations of Section 8(a)(1), (3), and (5) of the Act.
Respondent Employer filed a timely answer on March
29 denying the commission of any unfair labor practices.
At the opening of hearing Employer moved for Board
deferral of the complaint allegations of unfair labor prac-
tices in deference to a certain arbitrator's opinion and
award that issued on June 22, and accordingly it requests
that the complaint herein, in its entirety be dismissed by
the Board. The General Counsel and the Charging Party
on several asserted grounds contend deferral is inappro-
priate. The case has also presented certain deferral pro-
cedural questions and certain substantive complaint alle-
gation issues.
All dates are in 1982 unless stated to the contrary.
270 NLRB NO. 10
On the entire record one (essentially) fully stipulated,
and after consideration of the briefs filed by the General
Counsel, the Charging Party, and Respondent Employer
about August 26, I make the following
FINDINGS OF FACT
I. JURISDICTION
Pinkerton's, Inc., a Delaware Corporation, is engaged
in the business of furnishing guard services to customers
located in various States, including the State of Ken-
tucky, where Employer has a branch office and place of
business located in Louisville. During the past 12
months, in the course and conduct of its business oper-
ations, Pinkerton's, Inc. has performed services valued in
excess of $50,000, in States other than the State of Ken-
tucky. The complaint alleges, the Respondent by answer
admits, and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act, and that Local 71 is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE ISSUES
A. Background
1. The Board certifications
International Guards Union of America (Independent)
was initially certified by the Board in Case 9-RC-3389
on December 11, 1958, as the collective-bargaining rep-
resentative of employees in an appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act. As alleged in the complaint and
admitted in answer, the unit consists of:
All guards employed by Respondent out of its Lou-
isville, Kentucky branch office, but excluding auxil-
iary guards, all other employees, and all supervisors
as defined in the Act.
On April 11, 1966, Louisville Guards Union, Local #71,
International Guards Union of America was (last) certi-
fied by the Board in Case 9-RM-419 as the exclusive
representative of all employees employed in the follow-
ing appropriate unit:
All guards of the Employer employed by its Louis-
ville, Kentucky Branch Office, including regular
part-time guards and sergeants; but excluding all
other employees, including office clerical employ-
ees, professional employees, investigators, auxiliary
guards and supervisors as defined in the Act.
The underlying Decision and Direction of Election in
Case 9-RM-419, dated March 4, 1966, recites in fn. 2,
inter alia: "From its Louisville, Kentucky branch office,
the Employer has guards working in Louisville, Lexing-
ton, Shelbyville, and Owensboro, Kentucky."
2. The collective-bargaining history
The complaint alleges and Respondent Employer by
answer admits that at all times since December 11, 1958,
27
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union by virtue of Section 9(a) of the Act has been,
and is now, the exclusive representative of all guards em-
ployed by Employer out of its Louisville Kentucky
branch office (with stated exclusions); that the Union and
Respondent Employer since that time have been parties
to successive collective-bargaining agreements covering
the employees in that unit; and that the most recent
agreement is one effective from November 14, 1980,
through November 13, 1983.2
3. The substantive complaint allegations
The substantive factual allegations of unfair labor prac-
tices are contained in paragraphs 5 and 10 of the com-
plaint. Complaint paragraph 5 alleges that about January
3 Respondent Employer refused to recall from layoff
five named employees (Harold Young, Stanley A. Web-
ster, Charles J. Brown, Kenneth Hilton, and Bennie
Bramlett) because they had joined, supported or assisted
Local 71 and had engaged in concerted activity for the
purposes of collective bargaining or other mutual aid or
protection, and in order to discourage employees from
engaging in such activities or other concerted activities
for the purposes of collective bargaining or other mutual
aid or protection and/or because the said employees
would not agree to give up their union membership.
Complaint paragraph 10 alleges that about January 3 Re-
spondent Employer unilaterally withdrew its recognition
of Local 71 as the collective-bargaining representative of
employees who work in Lexington, Kentucky, with con-
current allegations specifically made therein that Lexing-
ton, Kentucky, is within the territorial jurisdiction of the
above-appropriate unit; that employees who work in
Lexington have been represented by the Union since De-
cember 11, 1958; and that they have been covered by the
successive contracts that have existed between the par-
ties.
The General Counsel has specifically urged in brief
that it be found herein that the Respondent has violated
Section 8(a)(3) and (1) of the Act by having failed to
recall the five named employees from layoff, because of
their union activities. The General Counsel also contends
in brief that Respondent has violated Section 8(aX5) and
(1) of the Act by its unilateral withdrawal of recognition
of the Union as the collective-bargaining representative
of its employees who work in Lexington, Kentucky.
Complaint does not contain a conclusionary allegation of
the conduct alleged in paragraph 5 being in violation of
Section 8(a)(3) and (1) as it does of the conduct alleged
in paragraph 10 being in violation of Section 8(a)(5) and
(1) (and 8(a)3)). Nonetheless, in light of the adequacy of
the notice first given the Respondent by the nature of
the specification of the substantive factual allegations
contained in paragraph 5(a) and (b) of the complaint
brought against it, and in view of colloquy and/or argu-
ments as otherwise expressed at hearing, but particularly
the positions as last advanced in brief by the parties for
' Although complaint recited termination date of current agreement as
being November 13, 1981, the submitted current agreement by its terms
reflects duration extends through November 13, 1983. The General
Counsel has moved, without opposition, to correct inadvertent error in
complaint issuance in that respect; and in light of the above showing of
record that motion is granted.
contended ultimate findings, I am satisfied that conclu-
sion is warranted herein that the Respondent received
adequate notice from the complaint as to the General
Counsel's contention that the refusal to recall the five
named employees from layoff was contended to be dis-
criminatory, and thus concludable on the facts alleged as
placed in issue as being violative of Section 8(a)(3) and
(1) of the Act, and that the parties, in substance and
effect, so recognized and have joined issue thereon. I
shall henceforth proceed to disposition of the complaint
allegations and raised deferral issues, accordingly.3
Employer has denied that it violated Section 8(aX3),
(5), and (1), in any of the above respects; and its answer
has notably included denial of the complaint allegation
that contained assertion of Lexington, Kentucky, as
being within a territorial jurisdiction of the above-appro-
priate unit.
As conceded, urged, by answer at hearing or in brief,
Respondent Employer does not deny that its guard em-
ployees who had worked in Lexington up until Decem-
ber 31, 1981, had been theretofore employed out of Lou-
isville or that all of its guards employed out of Louisville
were (and are) represented by the Union; and, as well, it
acknowledges that guards working out of Louisville, in
Lexington, were always theretofore covered by the suc-
cessive contracts that have existed between the parties.
However, Employer contends that the last of those em-
ployees (the five employees named above) were laid off
by Employer's Louisville branch office, by whom they
were employed, on December 31, 1981, at the time when
Employer's Louisville branch office, which regularly had
separately bid on its own work and in the past few years
had seen its guard service work in Lexington decline for
competitive reasons, lost its last guard service contract
work (for P. Lorillard) in Lexington. Employer asserts
Louisville was unsuccessful in any more activity in Lex-
ington. Employer thus essentially contends that it has not
refused to recall any of those employees from layoff, but
rather that their employer, the Louisville branch office
does not presently have any other contracts to provide
guard service (thus work) in Lexington, Kentucky; nor,
it asserts, has it withdrawn recognition from the Union
as their collective-bargaining representative.
In contrast with the General Counsel's and the Charg-
ing Party's basic contention, essentially that any of Pin-
kerton's, Inc.'s guards who are employed in Lexington
are represented by the Union, Employer contends rather
that the guards who have commenced working in Lex-
ington, Kentucky, in early January, and who are current-
ly working in Lexington, are employed out of its (non-
3 Thus the instant matter is more clearly governed by Board holding in
Meilman Food Industries, 234 NLRB 698, 699 fn. 4 (1978), than by hold-
ing of Florida Steel Corp., 224 NLRB 45 fn. 2 (1976). See and compare
Krqft Foods Inc., 251 NLRB 598 fn. 4 (1980). Finally, I do not view as
material to the resolution of the issues herein, the filing of an earlier
8(aXI) and (5) charge in Case 9-CA-17907 against Employer by the
Union on January 25, nor of Regional Director disposition (dismissal)
letter, as first presented by Employer by attachment to brief, where in-
stant charge and complaint in Case 9-CA-18308 were, respectively,
timely filed and issued and clearly present issues for Board addressment
and resolution, or deferral to arbitrator opinion and award. See and com-
pare Winer Motors, 265 NLRB 1457 (1982).
28
PINKERTON'S, INC.
union) Cincinnati, Ohio branch office on different, new
guard service work (for Brown & Williamson) that its
Cincinnati branch office, which assumed control of Lex-
ington effective May 1, 1981, had been able to thereafter
successfully bid competitively and been awarded and
which very work its Louisville branch office was unable
in past years to retain or interimly retrieve for competi-
tive price reasons. Thus the employees presently work-
ing in Lexington, Kentucky, Employer contends, are no
longer employed out of its Louisville branch office for
lawful economic reasons.
All of which, it is contended by Employer, was specif-
ically previously found by an arbitrator, on a full record
made by the parties in certain binding arbitration, to
have occurred for legitimate business reasons; and, as
well, for nondiscriminatory reason, as was contended by
Employer (at hearing), was also implicitly found by the
arbitrator, and to which decision the Employer would
now have the Board defer.
B. The Deferral Issues Presented.
1. The Respondent's motion
At the opening of the hearing on July 22, Respondent
Employer filed a motion of Pinkerton's, Inc. to dismiss
complaint in deference to an arbitrator's decision under
authority of the Board's prior holding in Spielberg Mfg.
Co., 112 NLRB 1080 (1955); or, alternatively, under an
(contended) authority of Amoco Texas Refining Co., 251
NLRB 1528 (1980), moved for a ruling that the record
of arbitration proceedings be ordered as one binding on
the parties, and for further order that the parties there-
upon brief only the legal issue of whether the arbitrator's
award of June 22, is clearly repugnant to the Act, based
on said record (alone). Employer submitted in support a
copy of the arbitration record, consisting of transcript of
the arbitration proceeding, the exhibits (including the
two specific grievances that were arbitrated, and copy of
the current collective-bargaining agreement providing
for binding arbitration), and the complete text of the ar-
bitrator's opinion and award. The arbitration record as
originally submitted did not include the parties' briefs
that had been submitted to the arbitrator. At hearing the
Employer also argued in support of its motion that a
comparison of the complaint's allegations with the arbi-
trated grievances will reveal that the substantive issues of
complaint are identical to those already decided by the
arbitrator under the binding arbitration. (In passing it is
observed that at hearing Employer not only contended
the issues were identical, but that the evidence bearing
thereon was to be exactly the same.)
2. The arbitrated grievances
The first of said grievances, filed by Harold L. Young
on January 1, reflects essentially that the nature of
Young's complaint was that Young claimed that he had
been illegally laid off from Pinkerton's, Inc. Louisville
branch office at a time when Pinkerton's, Inc. had other
locations (work) in the Lexington area to which Young
felt he could have been assigned; and that Young specifi-
cally grieved that he thought he should have been trans-
ferred to perform guard service work at the Brown and
Williamson Tobacco Company in Lexington, as he had
more seniority than any guard presently working there.
The second of the two arbitrated grievances (herein
the Union's grievance) was filed by the Union's business
agent, Charles Roth on January 3 with complaint therein
registering essentially: (1) that the Union viewed certain
conduct of Employer as illegal, namely in respect to the
information given to Roth by Davis W. Liverett, Louis-
ville branch office manager, in December 1981 that it
was losing the last operation it had in Lexington on Jan-
uary 1, and that ". . . any future operations in the Lex-
ington area serviced by Pinkerton's Inc. would be con-
ducted out of their Cincinnati Office"; (2) urging that
certain union-security provisions of the contract should
be applied to the employees working in Lexington or a
violation of contract would be construed; and notably (3)
with the Union raising specific contention based on the
Board's prior certification of the Union as an exclusive
bargaining representative in advancing claim: "We also
feel that Pinkerton's is in violation of National Labor Re-
lations Ruling dated March 4, 1966, Case 9-RM-419 that
specifically includes the Lexington area as one represent-
ed by Local #71 International Guards Union of Amer-
ica.
3. The Spielberg deferral issues refined
In Spielberg, supra, after first holding that the Board
was not bound as a matter of law by an arbitration
award,4 the Board then indicated its deferral to such an
award would nonetheless be appropriate where the arbi-
tration 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. The Board in Spielberg dismissed
an 8(aXl1) and (3) complaint in its entirety, finding the
employer had not violated the Act when, in accordance
with the award, it had refused to reinstate four strikers.
Notably, the Board had first concluded in that case that
the award was not at odds with the statute, significantly
also stating that in doing so, that did not mean that the
Board would necessarily have decided the issue of al-
leged striker misconduct as the arbitration panel did, spe-
cifically stating it did not pass on that issue. Rather upon
its finding that the above-enumerated conditions prece-
dent for an appropriate deferral were present the Board
therein stated what would appear as a hallmark expres-
sion of its underlying policy for a Spielberg deferral,
namely that: "In these circumstances we believe that the
desirable objective of encouraging the voluntary settle-
ment of labor disputes will best be served by our recog-
nition of the arbitrators' award," id. 802; and with pa-
rameters of the appropriateness of such a deferral on
other early occasion expressed by the Board as being to
defer in cases: ". . . where it can do so without aban-
doning its obligations to protect rights which the Act
guaranteed to employers, bargaining representatives, in-
' Neither is the Board mandated by the Act to exercise its plenary
power over unfair labor practices in all situations, Monsanto Chemical
Co., 130 NLRB 1097, 1098 (1961).
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dividual employees, or the public." Monsanto Chemical
Co., 130 NLRB 1097, 1098-1099 (1961).
General Counsel readily acknowledged, as was urged
by the Employer, that the Board's policy of nondeferral
in cases involving allegations of 8(aX3) in Collyer type
cases,5 as expressed in General American Transportation
Corp., 228 NLRB 808 (1977), did not extend to effect, or
disturb, the Board's earlier pronounced Spielberg deferral
doctrine, convincingly shown by the parties as a policy
continued by the Board.6 the General Counsel would
appear to as readily concede in brief that upon the stated
conditions being shown present for a Spielberg deferral,
that no material distinction need then be made as to
whether the unfair labor practice issue to be appropriate-
ly deferred to arbitration be one involving 8(aXI), (3), or
(5) complaint allegation.7 However, a Spielberg deferral
is appropriate, so principally contends the General Coun-
sel, only after there has been a scrutiny of the arbitration
proceedings and the arbitrator's decision first made by
the Board to determine that all the Spielberg standards
for deferral are present. In that respect the General
Counsel would paramountly rely on the additional Board
developed requirement that for a Spielberg deferral the
arbitrator must have considered the unfair labor practice
issue in the decision. Employer contends that the arbitra-
tor did consider the unfair labor practices alleged herein.
The General Counsel and the Charging Party contend to
the contrary. In support of their respective claims as to
presence, or absence, of the required consideration by
the arbitrator of the unfair labor practices alleged herein,
the parties have (collectively) advanced for precedential
guidance, though with controverted applications, prior
Board holdings in Raytheon Co., 140 NLRB 833 (1963);
Kansas City Star Co., supra; Pacific Southwest Airlines,
supra; Atlantic Steel Co., supra; Suburban Motor Freight,
247 NLRB 146 (1980); and American Bakeries, supra.
Preliminarily, it is thus generally to be observed that it
is apparent on analysis of the multiple party contentions
hereinafter reflected, that the parties have essentially
joined issue on various deferral aspects of whether or
not, under existing Board precedent, the unfair labor
practices alleged in complaint were previously presented
to, considered by, and adequately indicated ruled on by
the arbitrator; and whether, or not, the arbitrator's
award itself is one to be regarded in certain respects re-
pugnant to the purposes, or policies of the Act.
4. The arbitrator's findings and conclusions
The arbitrator essentially found (though not necessari-
ly in order shown) that Pinkerton's, Inc. operates from
branch offices; with additional conclusion made that
there was nothing in the evidence to suggest that the
parties did not deal with each other on the basis that
their respective rights and duties grew out of the fact
a Collyer Insulated WIre, 192 NLRB 837 (1971); Roy Robinson Chevro-
let, 228 NLRB 828 (1977).
Kan.m City Star Co., 236 NLRB 866, 867 fn. 3 (1978); Pacific South-
west Airlines, 242 NLRB 1169 (1979); Atlantic Steel Co., 245 NLRB 814
(1979); and American Bakeries Co., 249 NLRB 1249 (1980).
7 The Board has a policy of nondeferral in 8(aX4) matters, a consider-
ation noted by Employer as not involved herein. Cf. Flmatlon Associates,
227 NLRB 1721 (1977); United States Steel Corp., 264 NLRB 76 (1982).
and the assumption that the Company had business in
various geographical areas. The arbitrator further found
that during recent years the competitive position of the
Louisville branch office had diminished; that it had lost
its accounts one by one in Lexington, until in 1981 its
only active contract was P. Lorillard; that that company
had given notice of termination of contract effective De-
cember 31, 1981; that the competition was generally non-
union, which had placed the unionized Louisville branch
office at a competitive disadvantage in bidding on jobs in
the Lexington area; that all of the latter's former ac-
counts ". . . were lost due to competitive bidding (i.e.
lower price offered by competition for substantially
equivalent service)"; that it was in an attempt to deal
with the Louisville branch office's deteriorating business
base that Manager Liverett during 1980 contract negotia-
tions had proposed to the Union that some accounts
(inter alia Lexington) be staffed by nonunion guards,
which proposal was rejected by the Union and did not
become part of the contract.
The arbitrator also found that during May 1981, as
part of an attempt to deal with the Lexington situation,
the national office had decided to transfer Lexington
from the territory of the unionized Louisville branch
office to the nonunion Cincinnati branch office; that
originally Louisville branch office guards (at P. Loril-
lard) were scheduled to be transferred to Cincinnati
branch Office, but they had remained employees of the
Louisville branch office until that contract had ended;
that the Cincinnati branch office (in the interim) had suc-
cessfully bid on a job for Brown & Williamson in Lex-
ington on a low bid basis and for a price that the Louis-
ville branch office could not match; that the Louisville
branch office had been unsuccessful in retaining or re-
trieving that contract; that prior to layoff grievant
Young, because of seniority, had been offered a job in
Louisville branch office's closest facility at Burgin, Ken-
tucky, and that the others were offered similar jobs, but
all had declined; and that Young and the Union were
aware of what was going on in that the Louisville
branch office had also discussed the possibility of Young
being hired by the Cincinnati branch Office as a non-
union guard to work at Brown & Williamson, but that
possibility was also declined by Young, Roth, and the
Union on contention that Lexington was union territory;
that the Cincinnati branch office began the contract at
Brown & Williamson, effective January 1, and that com-
pany evidence was that if the work in Lexington for
Brown & Williamson were to be awarded to Louisville,
and its rates applied, the rate to Brown & Williamson
would be raised, and that contract inevitably lost.
With regard to union claim that Lexington belonged
to the Louisville branch office based on certification,
past practice, and the contract, the arbitrator's stated
view of the footnote (in the Decision and Direction of
Election) was that the footnote was descriptive of the
then extent of the company business; that to read more
into it would not be realistic; that business changes, and
that a description of the business is (consequently) sub-
ject to change; and that on a union (pressed) argument
that the arbitrator must determine whether Lexington
30
PINKERTON'S, INC.
was an area covered by the certification(s), the arbitra-
tor's stated judgment was that the most that can be said
about the territories or cities named in them is that the
Union has jurisdiction to the extent that the Louisville
office continues to have business in them.
The arbitrator also found that the Louisville branch
office tried in good faith to retain contracts in Lexington
but the prevailing economic conditions had worked
against its efforts; that the loss of business took place be-
cause of those conditions, rather than company caprice;
that with regard to past practice, if there was a practice
here, it was a practice of union employees serving in
cities where the Louisville branch office had contracts
for guard services; and that with regard to the additional
argument b raised by the Union that the arbitrator
should not give the Company what the Company did not
get in negotiations, that the Louisville branch office did
not have any nonunion business; and that the reaction of
the national office to do something about the loss of the
Lexington business by the Louisville branch office was
not an arbitrary, capricious, or unreasonable action; and
in connection with which, the arbitrator made additional
findings:
Nor was anyone in the Louisville branch office dis-
criminated against by the action of the national
office. In my judgment the Lexington business area
was substantially and effectively gone for the Louis-
ville branch office at the time the national office
acted.
The arbitrator, in conclusion, found that there was no
demonstration of a contract violation; that grievant
Young was properly laid off; that the Union's grievance
did not present a case on which relief can be granted;
and that in the absence of a proven contract violation,
there can be no relief granted. The arbitrator thereupon
denied both grievances.
5. The deferral issues as raised by the parties
a. The parties' contentions
(1) Employer's initial contentions
Employer initially submitted a memorandum in sup-
port of its motion in which it had argued that all the
(basic) Spielberg deferral conditions were present, and
with additional assertions made by it that the substantive
issues of complaint are identical to those decided by the
arbitrator in the binding arbitration, as provided by the
contract; and with argument made therefrom that the ar-
bitrator had rejected the specific claims of the Union
previously made that Louisville branch office employees
were "improperly" laid off because Employer had
guards working in Lexington; had rejected the claim of
the Union that Lexington is their "territory," and reject-
ed the Union's claim that the Employer had refused to
bargain regarding assignments in Lexington. Employer
contends that inasmuch as the arbitrator's decision is one
founded upon (with findings on) recognition and jurisdic-
tion language of the collective-bargaining agreements
since certification, Employer's economic/business justifi-
cations shown, and absence of any motive to erode the
bargaining unit, the arbitrator's decision is not one here
to be found by the Board as clearly repugnant to the
purposes of the Act. Employer advanced a reliance
(seemingly particularly insofar as an 8 (aX3) allegation re-
lates) on Board holding in Ingersoll Ran, Co., 247 NLRB
801 (1980), with Employer contention thereon that:
"Sound Board authority holds that an employer is not
guilty of an unfair labor practice where its actions are in
response to legitimate economic necessities, and are not
motivated by antiunion animus." Employer contends that
this is not a relocation or transfer of work case. Employ-
er also advanced, insofar as an 8(a)(5) allegation, and
presumably thereby seeking a compared reliance (or ex-
tension) of Board holding of no 8(aX5) violation shown
where a "Double Breasted" employer did not engage in
deception, or transfer work from a union company to a
nonunion company, to its own reassignment of Lexing-
ton from its (union) Louisville branch office to its (non-
union) Cincinnati branch office, under the circumstances
shown there, including (as argued present also herein)
where the Union had always lived by jurisdictional lan-
guage in contract (viz. representing those guards em-
ployed by or out of Louisville), urging on that point to
see A-i Fire Protection, 233 NLRB 38 (1977), remanded
600 F.2d 918 (D.C. Cir. 1979), reaffd. 250 NLRB 217,
219 (1980).
(2) Contracontentions of the General Counsel and
the Charging Party
It was readily acknowledged at hearing, and remains
uncontested by the General Counsel and Charging Party
Union, that pursuant to provisions for binding arbitration
under the parties' current contract an arbitration hearing
was held on the above Young and union grievances; that
the proceedings conducted thereon were fair and regu-
lar; and that on June 22, the impartial arbitrator designat-
ed by the parties thereto, had issued an Opinion and
Award in which the arbitrator denied the above two
grievances. However both the general Counsel and the
Charging Party at hearing, after review of the arbitration
record (as then) advanced, following recesses granted for
such purpose,' nonetheless contended that the Board
should not defer the present complaint allegations to the
arbitrator's prior opinion and award. Essentially the con-
tentions then and now urged are: that the arbitrator had
been earlier presented with a contractual issue; that the
arbitrator's decision had turned strictly on contractual in-
terpretations; and that the arbitrator did not directly ad-
dress the statutory unfair labor practice issues that are
presently before the Board. Both the General Counsel
and the Charging Party in their briefs have continued to
advance this basic contention in that they assert from a
review of the arbitrator's decision it is clear that the arbi-
trator addressed the issues raised by the grievances solely
on the basis of a potential contract violation, or in a con-
text of whether or not Pinkerton's, Inc. had violated the
collective-bargaining agreement. In support thereof, both
s The General Counsel's preliminary cross-motion for an adjournment
beyond the day was denied.
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
essentially would specifically rely on certain arbitrator
statements, namely:
(a) Opening paragraph of arbitrator's opinion in which
the arbitrator stated:
The two grievances are inter-related. They both
concern the failure of Pinkerton's, Inc. to assign
bargaining unit employees to perform guard serv-
ices in the Lexington, Kentucky area. Pinkerton's,
Inc. would assign bargaining unit employees from
its Louisville Branch Office to perform such serv-
ices if that office had contracts in Lexington. The
inquiry here is whether the grievants have any rec-
ognizable contract rights to guard service contracts
held by the Cincinnati Branch Office of Pinkerton's,
Inc. in the Lexington Area. I have considered all of
the arguments made on behalf of the Grievants, but
I am not persuaded that under the circumstances
the Grievants have any contract right to be as-
signed to guard service work being performed in
the Lexington area by the Cincinnati Branch Office.
My holding is a narrow one and should be thought
of as applying to the facts of this case only.
(b) Statement of arbitrator (following his stated judgment
as to the import of the certification documents):
There can always be a question concerning the
cause of the loss of business and whether or not any
arbitrary, capricious or unreasonable company acts
took place to cause the loss, but in the absence of
more definitive contract language dealing with the
problem in this case and in view of my finding that
the loss of business took place because of prevailing
business conditions rather than because of Company
caprice, it is my judgment that there is no basis for
finding a contract violation.
(c) The arbitrator's concluding statement:
In conclusion, there was no demonstration of a con-
tract violation. Grievant Harold Young was proper-
ly laid off. The grievance of Charles Roth, Sr. does
not present a case on which relief can be Granted.
In the absence of a proven contract violation, there
can be no relief granted.
Both the General Counsel and the Union (in briefs)
would have it relatedly observed (and are accurate of
record in advancing such contention) that there was no
reference by the parties in the arbitration transcript to a
pendency of unfair labor practice charges, nor that a
complaint had issued relating to the matters involved in
the arbitrated grievances. Both further argue that review
of the transcript also reveals that the Union and Employ-
er had themselves framed the issue presented to the arbi-
trator, early in the arbitration proceeding, as within the
context of the contract. The record reveals they did so
respectively, as follows:
(a) by Union counsel:
. . .And so that it is now presented to you for de-
termination. And that determination will be the
question of whether or not the Company does have
a contractual obligation, can the Company, in light
of whatever the facts are developed here today,
take a unilateral position that they are not obligated,
that this Contract doesn't cover people that are
working for the Pinkerton Company's Cincinnati
Office and that by some administrative fiat restruc-
turing within themselves, the Company can avoid
the effect of it's [sic] contractual obligations.
Again in passing it is however observed that the arbitra-
tor's recitement of the Union's position identified a con-
tention was also advanced on certification, viz.: "We be-
lieve that the Arbitrator must determine whether or not
Lexington is an area covered by the certification, the
collective bargaining history and the contract."
(b) By Employer counsel:
Because the issue really, as we see it, is, can the
Union change the Contract language, and the certi-
fication from an Agreement covering people work-
ing out of the Louisville office to an agreement
covering people working out of any office of Pin-
kerton in one of the Kentucky or Indiana, I sup-
pose, areas which historically had been served out
of the Louisville office. And just by stating it, I
demonstrate that that is just not what the Contract
or the certification has to say.
It was, and is also specifically, urged by the General
Counsel that the arbitrator did not address the 8(a)(3) al-
legations of the complaint in that he did not deal with,
or was silent as to the (alleged) unlawful, antiunion moti-
vations with regard to Employer's decision to transfer
the operations in Lexington from the authority of the
(union) Louisville branch office to that of the nonunion
Cincinnati branch office; and that since the arbitrator did
not directly address these issues and since a failure on
the part of the arbitrator to consider these issues would
render the arbitrator's decision repugnant to the Act, the
Board, accordingly, should not defer in these matters.
(3) Employer's cross-contentions
At hearing Employer immediately countered that
under established Board doctrine an arbitral decision
does not have to specifically refer to the provisions of
the Act in order to be appropriate for deferral in terms
of whether an arbitrator has adequately considered the
issues that are presented by a complaint; and with Re-
spondent Employer advancing in support thereof prior
Board holdings in Atlantic Steel Co., 245 NLRB 814
(1979); and Kansas City Star Co., 236 NLRB 866 (1978).
Thus Employer argued that in Kansas City Star Co.,
supra, the Board explained that a deferral is proper if the
arbitrator has "made factual findings regarding [the statu-
tory issue]." Id. at 867. Employer would specifically rely
on the expression by Member Truesdale as cogent tin
that regard, in separate concurring opinion, as expressed
by Employer in brief.
While the arbitrator did not pass on the legality of
the [statutory issue], he was required to rule on
32
PINKERTON'S, INC.
every factual and legal question necessary to the
resolution of this issue.
Thus, my decision to concur [in deferring to the
Arbitrator's decision] rests on the unique relation-
ship between the issues decided and the one omit-
ted-since all the factual and legal findings necessary
to the resolution of the 8(a)(5) allegation . . . were
also necessary to a determination of the legality of the
[arbitrated actions]. These issues were vigorously
litigated before the arbitrator, and he reached his
decision on the basis of a full record. No more is
required. [Id. 869.]
(Italics and paraphrasing of omissions appears above as
supplied by Employer.)
Employer also contends that in the Atlantic Steel Co.,
case, supra, where the administrative law judge had re-
fused to defer because (as the General Counsel has
argued here): "[T]he arbitrator confined his decision to
issues arising under the contract and failed to consider
whether the conduct amounted to an unfair labor prac-
tice." The Board, relying on the Kansas City Star case,
supra, did defer, again stating:
[I]t is necessary only that the arbitrator has consid-
ered all the evidence relevant to the unfair labor
practice in reaching his or her decision.
[T]he Board recognized that the Spielberg doctrine
could be satisfied where the arbitrator's decision im-
plicitly resolved the unfair labor practice. [245
NLRB at 815 (emphasis in original).]
In further contravention of the argument that the arbi-
trator did not consider an unlawful antiunion motivation
claim, Employer also advanced reliance on: (a) a certain
statement made by the Union previously to arbitrator (in
its brief to arbitrator), "Yet here Pinkerton's asks the ar-
bitrator to ignore its obvious antiunion purpose in unilat-
erally reassigning the Lexington area to the Cincinnati
Office and to approve the Company's attempt to avoid
its legal and contractual obligations to this Union";9 and
(b) a (related) statement of arbitrator, as at outset includ-
ed in union position, that, "A unilateral administrative
determination cannot, therefore, defeat Pinkerton's legal
and contractual obligation"; and with Employer's argu-
mental contention made thereon that the term legal had
reference to rights under the Act. 10 From the latter, in
s As to the excerpt from union brief submitted to arbitrator, by supple-
mentaul tipulation (discussed infra), the briefs submitted by the parties to
the arbitrator were subsequently made part of the record. The above
statement from union brief is found therein a the third of a three-sentence
paragraph, with prior sentences thereof equally notably providing: "It is
well established that an employer's desire to escape a financial burden re-
suiting from the collective-bargaining process is not an adequate business
justification to excuse an unlawful termination." See, for example, NLRB
v. Nash-Flnch Co., 211 F.2d 622 (8th Cir. 1954).
1' However the sentence immediately preceding the latter, and to
which the same appears to bear more direct relationship relates: "Pinker-
ton's obligation to the Union is based on Board certifications, the collec-
tive bargaining history and the contract."
combination with the additional finding of arbitrator ex-
pressed in opinion, "In this case, I find that the Louis-
ville Branch Office tried in good faith to retain contracts
in Lexington, but prevailing economic conditions worked
against its efforts"; and with general reference to other
supportive findings made by the arbitrator that the
reason for the Company's action was economic, Employ-
er has argued essentially, that by virtue of the other rea-
sons that were presented (by the Union) to the arbitrator,
by implication, the arbitrator found that there was not
any motivation (on the part of Employer) to get out
from under the obligations of its contract.
It was early observed that the only apparent reference
specifically to "discrimination" in the opinion and award
is found in statement by arbitrator in opinion, "Nor was
anyone in the Louisville Branch Office discriminated
against by the action of the National Office." Employer
argued at hearing (in combination with the above), that
is enough under Atlantic Steel Co., supra. Indeed Em-
ployer has now advanced argument in brief that Board
holdings in the latter and Kansas City Star Co., supra,
mandate such a deferral. In brief, Employer would also
have related standard for the close review of award be
(directed) as to the showing made, ". . . that the findings
of the arbitrator support his conclusions and demonstrate
that he considered and rejected the contentions of the
General Counsel," Pacific Southwest Airlines, 242 NLRB
1169, 1170 (1979); that an observance also be made
herein of Board holding in American Bakeries, 249
NLRB 1249 (1980) that, in the review to be made of the
record "differing inferences . . . do not warrant a de
novo review of the evidence;" and urges (presumably as
part of the due deference) an acceptance of arbitrator
statement, "I have considered all of the arguments made
on behalf of the grievants . . ." as a confirmation of the
latter's consideration of all union arguments raised. "
(4) Additional contentions of the General Counsel
and Local 71 that there was not adequate indication
of a ruling by the arbitrator on the unfair labor
practices alleged herein
At hearing the General Counsel contended that the At-
lantic Steel Co., case, supra was itself readily distinguish-
able because the arbitrator had there found that the pro-
tected concerted activity of the individual played no part
in his discharge; thus making a finding that would clear-
ly underpin the unfair labor practice analysis and finding
of the Board supporting deferral. In contrast the General
Counsel argued that the arbitrator in the instant matter
really did not treat the Employer's antiunion motivation
beyond the factual recitation that there had been a trans-
fer of the work in the Lexington area from the unionized
Louisville office to the nonunion Cincinnati office. The
General Counsel supports position taken at hearing that
the arbitrator did not sufficiently consider the unfair
labor practice issues with arbitrator basic stated reliance
placed in brief on the Board's later holding in Suburban
I I The procedural guidance of Board holdings in Pac(fic Southwest Air-
lines, supra, and American Bakeries, supra have been followed herein.
33
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Motor Freight, 247 NLRB 146 (1980), wherein at 147 the
Board majority held:
[We] will no longer honor the results of an arbitra-
tion proceeding under Spielberg unless the unfair
labor practice issue before the Board was both pre-
sented to and considered by the arbitrator ....
[We] will give no deference to an arbitration award
which bears no indication that the arbitrator ruled
on the statutory issue of discrimination in determin-
ing the propriety of an employer's disciplinary ac-
tions.
Here the General Counsel has argued under such hold-
ing that the requisite scrutiny of the arbitrator's decision
fails to reveal any indication that the arbitrator actually
considered the discrimination or unfair labor practice
issues involved in the case at bar. In that respect, accord-
ing to the General Counsel, the single sentence, "Nor
was anyone in the Louisville Branch Office discriminated
against by the action of the national office," is the only
passing reference to possible discrimination or discrimi-
natory conduct on the part of Employer; and it is the
General Counsel's contention that the same is simply not
sufficient to satisfy the Suburban Motor Freight, supra,
standard for consideration of unfair labor practice issues;
and it is contended as well that the generalized use of the
word "legal," such as appears therein, hardly is to be
deemed sufficent in that regard.
The Charging Party argues additionally that when the
above-single (discrimination) sentence is viewed in
(argued) context of the point under discussion by the ar-
bitrator, to wit, the (additional) failure of the Company
to obtain the Union's agreement during the 1980 contract
negotiations to allow the Company to service a certain
geographic area from the Louisville office with nonunion
guards, the quoted sentence falls far short of the requisite
standard for deferral set forth by the Board in Atlantic
Steel Co., supra. Thus with differing view of the scope of
the arbitrator's findings, and the issues herein, Charging
Party Union, though joining Employer in a stated reli-
ance on Atlantic Steel Co., supra, argues for its contrary
application, namely, that the arbitrator did not make any
factual findings on the discrimination issue that "are
complete and comprehensive and factually parallel to the
unfair labor practice"; and urges, pointedly, e.g., that
rather, the Young grievance (itself) was considered by
the arbitrator in light of relief sought and not as a dis-
crimination issue.
(5) The various contentions advanced by the
General Counsel and Local 71 that a deferral is in
any event inappropriate, as the decision reached by
the arbitrator is repugnant to the Act
The General Counsel first contends that the Respond-
ent has in effect sought to sever a part of the bargaining
unit by an administrative reorganization; but contends
that since at the time of certification Pinkerton's employ-
ees working in Lexington were part of an appropriate
bargaining unit, they remain members of that bargaining
unit regardless of whether administrative matters are
thereafter conducted through Pinkerton's Louisville or
Cincinnati office. To hold otherwise, so argues the Gen-
eral Counsel, would subvert statutory rights of employ-
ees to Employer's mere whim.
The General Counsel further argues that it is clear
from certain arbitrator findings that the Respondent's de-
cision to reassign its Lexington business from its Louis-
ville to its Cincinnati office was to avoid its contractual
obligations with the Union, since during negotiations for
the current agreement the Respondent had unsuccessful-
ly sought to change the recognition clause so as to be
permitted to staff its Lexington operations with nonunion
guards, which is the same result it has later sought to ac-
complish by corporate administrative fiat in assigning the
Lexington area to the Cincinnati office. The General
Counsel asserts Employer has done so because employers
in Lexington, with which it sought contracts to supply
guard services, were adverse to utilizing a unionized
guard firm; and because higher wage and benefits paid
under the Union's contract placed Employer at a com-
petitive disadvantage in obtaining new customers. The
General Counsel argues, from the above, that no clearer
evidence of Employer's intent to circumvent its financial
obligations under the contract, or of antiunion motiva-
tion in removing the Lexington area work from the bar-
gaining unit could be manifested.
The General Counsel has thirdly advanced an argu-
ment (as anticipated by Employer) that the Board has
held such a (contended) midcontract unilateral removal
of bargaining unit work is violative of the Act, regard-
less of economic justification; and further, that proof of
union animus is not necessary because Employer's ac-
tions were "inherently destructive of employee interest
and that the employees lost the jobs to which they were
entitled as a result of Respondent's efforts to escape its
economic obligations under the contract." Brown Co.,
243 NLRB 769, 771 (1979); and Los Angeles Marine
Hardware Co., 235 NLRB 720 (1978).
In advancing an essentially similar argument that the
arbitrator's decision is repugnant to the Act in that the
arbitrator simply did not come to grips with Employer's
obvious antiunion motivation in its unilateral reassigning
the Lexington, Kentucky area from the unionized Louis-
ville branch office to the nonunionized Cincinnati branch
office, and did not determine the statutory impact of Pin-
kerton's attempt to avoid the union contract, the Charg-
ing Party appears to take a slightly different "tack," and
presses on its basic contention in those respects that the
arbitrator addressed only the contract issue. Thus, the
Union contends that certain of the arbitrator's findings
clearly demonstrate that the arbitrator was concerned
only with the resolution of the alleged contract violation
which the parties had presented to him through the
grievance and arbitration procedure under the contract,
and not with the resolution of the Union's statutory
rights under the Act. The Charging Party would have
the same found demonstrated from review of certain ar-
bitrator findings, conceded as accurate:
According to the Company evidence the competi-
tion was generally nonunion and this placed the
unionized Louisville Branch Office at a competitive
disadvantage in bidding on jobs in the Lexington
34
PINKERTON'S, INC.
area. All of the Lexington accounts formerly serv-
iced by the Louisville Branch were lost due to com-
petitive bidding (i.e. lower price offered by compe-
tition for substantially equivalent service).
The Louisville Branch Office on several occasions
had rebid for Brown & Williamson, but had been
unsuccessful due to price. Mr. Liverett testified that
the Louisville Branch Office could not match the
price bid by the Cincinnati Branch Office to obtain
the Brown & Williamson account. Mr. Liverett also
testified that if the Company were required to place
Mr. Young and other Louisville Branch Office
guards at the Brown & Williamson job (and pay
them the attendant wage required under contract),
then the Company would have to raise the price to
Brown & Williamson which would inevitably result
in a "re-loss" of that account.
The Union's argument therefrom is, that rather than then
determining the statutory impact of Pinkerton's attempt
to avoid the union contract the arbitrator merely found:
It would be unreasonable to say that a company
could not cease doing business in any city in which
it at one time operated. Such a statement would
assume that business does not change. The point is
that the issue of whether an entity operates in a
given city or not is not entirely within the control
of the entity. In this case, I find that the Louisville
Branch Office tried in good faith to retain the con-
tracts in Lexington, but the prevailing economic
conditions worked against its efforts.
There can always be a question concerning the
cause of the loss of business and whether or not any
arbitrary, capricious or unreasonable company acts
took place to cause the loss, but in the absence of
more definitive contract language dealing with the
problem in this case and in view of my findings that
the loss of business took place because of prevailing
business conditions rather than because of Company
caprice, it is my judgment that there is no basis for
finding a contract violation. (Emphasis as supplied
by Union.)
(6) Other contentions
For the first time in brief, the General Counsel has
submitted that a deferral herein is also not to be deemed
arpropriate inasmuch as the arbitrator in his decision has
construed the unit described in the Board's 1966 certifi-
cation of the Union and the Board's underlying Decision
and Direction of Election, including fn. 2 of the latter,
which construction was an essential part of the arbitra-
tor's ultimate resolution of the issues that were presented
to him; and in that regard, so argues the General Coun-
sel that there should be no deferral because the Board
has consistently held that it will not defer on issues of
representation, or questions of appropriate unit, with reli-
ance stated on case, e.g., Cannon Air Conditioning Co.,
252 NLRB 556, 557 (1980); and Ortiz Funeral Home
Corp., 250 NLRB 730 fn. 2 (1980). The General Counsel
further argued that the arbitrator's construction was
wrong, but cites no authority for that proposition. The
Charging Party has not advanced similar position there-
on.
Employer has only relately asserted, in addition to
urgings that it be noted that this is not an accretion case,
or close down/reopen case, that in the event instant
unfair labor practices are not to be deferred to arbitrator
decision, that the facts herein relative to the Board certi-
fications, contract application, and recognition clauses (in
current, and prior agreements), and consideration of that
Union own constitution (not before the arbitrator but of-
fered herein) warrant finding that Lexington is not
shown to be union "territory" under applicable Board
precedent, as a certification has long been held not to be
viewed as a jurisdictional award Plumbing Contractors
Assn. of Baltimore, 93 NLRB 1081 (1951); Heating, Piping
& Air Conditioning Contractors, 160 NLRB 34 (1954); and
Carey v. Westinghouse Electric Corp., 375 U.S. 261, 269
(1964). The Employer also argues that the General
Counsel and the Union cannot show that the contract
was "intended" to apply to Lexington as their territory,
as required, B & B Industries, 162 NLRB 832 (1967); Na-
tional Electrical Contractors Assn., 152 NLRB 1604
(1965); and that there is no justification for departing
from contract language of 20 years, see Temple-Eastex
Incorporated, 228 NLRB 203 (1976).
Finally, although acknowledging that the Union had
argued such a contention before the arbitrator, Employer
urges, in the event there is not a deferral, that a General
Counsel argument, if advanced, that the Company was
acting in bad faith in "unilaterally implementing" a pro-
posal that was rejected at the bargaining table cannot be
litigated here, as it was not charged in the complaint.
6. The supplemental stipulations of fact; and
additional documentary evidence
Following the General Counsel and Charging Party's
advancement of contentions at hearing that the arbitrator
had not considered the unfair labor practices alleged
herein, and that the arbitrator also did not have all of the
relevant evidence bearing on the unfair labor practices
presented herein, over the Respondent's technical objec-
tions, certain supplemental stipulations of fact were then
entered by the parties and received. They essentially are:
Stipulation 1. Among the reasons advanced at the
bargaining table in the 1980 negotiations for the
proposed change in the recognition clause in the
collective bargaining agreement and the reason for
Pinkerton's subsequent action of transferring oper-
ations in Lexington from the Louisville Branch
Office to the Cincinnati (Branch) Office were:
(I)-In the outlying rural areas served by the Lou-
isville Branch Office most of the employers were
non-union; and they had demonstrated a certain
aversion to contracting for a unionized guard force.
Thus, new accounts for the Louisville Branch
Office were often difficult to garner in such areas.
(2)-The higher union wage and benefits required
pursuant to the contract were increasingly placing
the Louisville Branch Office at a competitive disad-
35
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vantage outside the Louisville Metropolitan Area,
especially in Lexington, and vicinity."'
Stipulation 2. In the past, under the collective bar-
gaining agreements that are part of the record ex-
hibits in the arbitration proceeding, employees laid
off from jobs when Pinkerton's Louisville Branch
Office lost guard service contracts, could, and in
fact at times did, bump Pinkerton's Louisville
Branch Office employees with less company seniori-
ty from jobs which Pinkerton's Louisville Branch
Office continued to service.
This procedure applied to the Lexington metropolitan
area as well as others. s
Stipulation 3. In a March 11, 1981 letter, and in suc-
ceeding months, including December, 1981, and at
times in 1982 as well, Liverett informed Roth that
because of the wages and benefits provided for in
the collective bargaining agreements between the
parties, Pinkerton's Louisville Branch Office was
unable to competively bid for contracts in the Lex-
ington area, and lost contracts in the Lexington area
to non-unionized guard service agencies.14
Stipulation 4. None of the employees named in Para-
graph 5 of the complaint have been employed by
Pinkerton's since January 1, 1982. None of them
have been offered employment at the Brown & Wil-
liamson operation in Lexington, Kentucky, since
January 1, 1982. Employees of the Louisville
Branch Office, working at the P. Lorillard account
in Lexington, Kentucky were advised of an oppor-
tunity to continue employment by the Louisville
Branch Office under the provisions of the collective
bargaining agreement at a location in Burgin, Ken-
tucky. The record shows that the employees refused
that opportunity. '
In addition, the record shows that employees of the
Louisville branch office employed on the P. Lorillard ac-
count in Lexington, Kentucky, were also advised that
there would be employment opportunities under the ju-
risdiction of the Cincinnati branch office on a new con-
tract which the Cincinnati branch office had acquired
Is The essential substance of the stipulation is contained in the collec-
tive testimony of Liverett and Roth at the arbitration hearing. Even more
significantly, the matters of Stipulation 1(1) and (2) were submitted to the
arbitrator by Employer in its brief to arbitrator virtually in haec verba.
1s This stipulation is essentially the seniority clause in operation (of ar-
bitration record) with affirmance of its prior application at Lexington.
'4 The March 11, 1981 letter to Union President Nalley was an exhibit
of record in arbitration proceeding, as was (essentially) evidence of Li-
verett's position presentments to Roth in 1981. It was not shown as pre-
cisely however, as to 1982 occurrences.
I The fact stipulated in sentence one is not as fully of arbitration
record. As to Burgin, Kentucky offer (sentence 3), with differing recol-
lection at hearing as to the date of such offer, the parties agreed that they
would be governed herein in regard to the date of such Burgin, Ken-
tucky offers by what the arbitration record shows. The witnesses at the
arbitration hearing report that the offer made as to Burgin, Kentucky em-
ployment was made after layoff on varied dates in the period early to
mid-January, while the arbitrator found that (at least) grievant Young
was offered Burgin, Kentucky employment prior to layoff, which oc-
curred on December 31, 1981. Notably the arbitration record testimony
does reveal that Young was offered opportunity to be employed by Cin-
cinnati branch office prior to layoff.
from the Brown & Williamson Company, effective Janu-
ary 1, 1982. The record discloses that they refused that
employment because the Company would not continue
to recognize Local 71 as the bargaining agent for the
employees that would be so employed by the Cincinnati
branch office.
Stipulation 5. The briefs submitted by the Union and
the Company to the arbitrator will be a part of the
record.
Stipulation 6. The employees named in paragraph 5
of the complaint were the employees who were the
subject of the arbitrator's Decision, and employed
in Lexington, Kentucky by Pinkerton's at the P.
Lorillard facility prior to December 31, 1981.'6
Additionally a letter of union counsel Raymond Sales,
dated April 22, 1981, addressed to Davis W. Liverett,
was offered and received in evidence as General Counsel
Exhibit 2.
The above union letter was written in response to a
certain letter of Liverett, dated March 11, 1981. (Liver-
ett's letter had been made an exhibit before the arbitra-
tor. The Union's letter in response was not.) In pertinent
part the Union's April letter recited Roth's March let-
ter's advice that effective May 1, 1981, the Louisville
office would no longer service Fayette County (perti-
nently Lexington), and that all security personnel as-
signed to the P. Lorillard Company account will be
transferred to the Cincinnati office; and it otherwise in
pertinent part, provided:
I am not sure that we understand the full implica-
tion of this letter but the Union does insist that the
Pinkerton employees working in the Lexington,
Kentucky area and particularly the Lorillard Pin-
kerton employees continue to be in this bargaining
unit and the Union will insist upon the representa-
tion of these employees.
After reciting the prior union certification and bargain-
ing history, the letter went on to inform the Employer
that "the Union expects that the Company will respect
its contractual and legal obligations and continue to bar-
gain with the Union and recognize the Union as the col-
lective bargaining representative for these employees."
Although the arbitrator did not have the Union's April
letter responding to Liverett's March letter, the arbitra-
tor had made certain related findings as to the national
office's decision to transfer Lexington to Cincinnati ef-
fective May 1, 1981, and that the P. Lorillard guards em-
ployed by the Louisville branch, though scheduled, were
not subsequently transferred to Cincinnati branch office,
but had remained employed by the Louisville branch
office until that contract terminated and they were laid
off, as earlier shown.
Additionally a copy of article III, jurisdiction, from
the constitution and bylaws of Local 71, International
Guards Union, as amended, was received in evidence as
Respondent's Exhibit 1. It provides pertinently:
16 This stipulation is more definitive in detail in application to all five
alleged discriminatees herein.
36
PINKERTON'S, INC.
The jurisdiction of Local Seventy-One of the Inter-
national Guards Union of America shall be confined
to all persons employed as guards within the au-
thority of the Louisville, Kentucky Office of Pin-
kerton's, Inc., subject to change by the Central Ex-
ecutive Council of the International Union.
The foregoing also was not made an exhibit before the
arbitrator, nor does the arbitrator make reference there-
to. The arbitrator did consider relevant portions of the
contract which in pertinent part provided that the agree-
ment "shall apply to all guards employed at the Louis-
ville Office by Pinkerton's, Inc." and that "the Employer
recognized the Union as the exclusive bargaining agent
for all guards within the bargaining unit .... The term
'Employee' shall include all guards of the Employer as-
signed to duty by the Louisville Office. ... ."
In regard to the above supplemental stipulations of
fact entered by the parties at the hearing, Employer in
brief argues that since the Union was represented by the
same counsel in arbitration (both at hearing and on
brief), as here, and since the General Counsel and the
Union have conceded the arbitration was fair and regu-
lar, the above stipulated facts cannot be inconsistent with
those of record before the arbitrator; and it asserts that
Employer consented to the stipulations only because the
facts requested by the General Counsel and the Union
were already of record. 17
Finally as the parties' several positions, in the main,
have centered in contention on what was presented and
is indicated was considered and ruled upon by the arbi-
trator in reaching his opinion and award it would appear
also appropriate to additionally observe that the arbitra-
tor therein presented the current contract's article XVI,
grievance procedures, which inter alia pertinently pro-
vides:
F. The arbitrator shall be limited in considering and
deciding only the particular complaint presented
and the decision shall be limited to the interpreta-
tion of the provisions of this Agreement as it applies
to the complaint.
Analysis, conclusions, and findings
The arbitration proceedings were conducted in a fair
and regular manner, and all parties had agreed to be
bound by the arbitration. Procedural questions momen-
tarily aside, the major issues broadly viewed center on
the further Spielberg requirement that the arbitration
award not be clearly repugnant to the purposes of the
Act: and the additional deferral requirement, later estab-
lished by the Board, e.g., in Raytheon Co.,' s which is es-
sentially that the arbitrator have considered the unfair
labor practice(s) raised in complaint. Resolution of the
latter question of arbitrator consideration may involve
addressment of any of a number of factors. Thus, a
17 In view of ruling herein, any effect of seeming disparity between
Employer's generally referenced four supplemental stipulations and those
above shown and numbered six, for convenience, need not be further ad-
dressed.
I" 140 NLRB 883 (1963), enf. denied on other grounds 326 F.2d 471
(Ist Cir. 1964).
Board majority early observed in Raytheon Co., supra,
that the statutory issue presented to the Board, which
was one of protected union or concerted activities, or
pretextual discharge, was not the same issue as the con-
tract issue considered by the arbitrator, which was one
of whether employees had violated a no-strike clause.
The arbitrator had also received an explicit instruction
from one party that the arbitrator was to limit himself to
a resolution of the contract issue; and there was acquies-
cence, or essential agreement thereto by the other party
in that there was no effort by that party to advance any
statutory contention that exceeded the limitation thus
placed on the arbitrator. The evidence bearing on the
different legal issues also was determined not to be the
same; and all of the evidence bearing on the statutory
issue had not in fact been presented to the arbitrator.
When the omitted evidence was subsequently offered
and received in the unfair labor practice proceeding,
upon evaluation it was found in nature to be persuasive
that a pretextual discharge had occurred. In light of in-
struction given the arbitrator that the arbitrator could
not even consider evidence that concerted activities were
possible causes for the discharges, the Board majority
consequently concluded that the arbitrator had necessari-
ly ignored the unfair labor practice issue presently before
the Board; and the Board thereupon stated: "We cannot,
in giving effect to arbitration agreements, neglect our
function of protecting the rights of employees granted by
our Act." 19
The Board's basic requirements for the consideration
of an unfair labor practice issue in an arbitration pro-
ceeding such as would support deferral is found in Sub-
urban Motor Freight, 247 NLRB 146, 147 (1980). In Sub-
urban Motor Freight, a Board majority °0 held, in respect
to an unfair labor practice issue of alleged respondent
discrimination against employees, essentially that before
there may be a Board deferral to an arbitration award
the unfair labor practice issue(s) must have been both
presented and considered by the arbitrator; there must
also be indication that the arbitrator ruled on the unfair
labor practice issue(s); and the party seeking the deferral
has the burden to prove that the issue of statutory dis-
crimination was an issue litigated refore the arbitrator.
In an earlier case, where a specific finding on a re-
maining unfair labor practice issue (involving the legality
of a recision of contract) had not been made by the arbi-
trator, a Board majority"' had nonetheless held that the
arbitrator's required consideration of the unfair labor
practice issue was satisfied where the arbitrator had
made all the factual and legal findings necessary for the
1" The Board had earlier arrived at similar result of refusing to defer
where the parties had submitted an unfair labor practice issue to an arbi-
trator but the arbitrator's award did not even purport to resolve the
unfair labor practice issue (one of discharge for union activities) because
the arbitrator explicitly stated he had ignored the unfair labor practice
issue, and resolved the matter on other grounds. Monsanto Chemical Co.,
130 NLRB 1097, 1099 (1961).
'O The majority consisted of (then) Chairman Fanning and Members
Jenkins and Truesdale, with Member Penello dissenting.
" Members Penello, Murphy, and Truesdale (concurring) comprised
the majority view, with (then) Chairman Fanning and Member Jenkins
dissenting.
37
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disposition of the remaining unfair labor practice issue on
the basis of a full record developed by the parties in a
fair and regular proceeding; indeed, his findings other-
wise were deemed such as in nature to preclude any
other result, Kansas City Star Co., 236 NLRB 866, 867-
868 fn. 6 (1978). A Board panel22 in an interim case, At-
lantic Steel Co., 245 NLRB 814 (1979),23 had observed
that while it was preferable, it was not required that an
arbitrator pass on the unfair labor practice directly, with
Board indicating the arbitrator could do so "implicitly;"
and with Board clear statement of the only requirement,
as being, "it is necessary only that the arbitrator has con-
sidered all of the evidence relevant to the unfair labor
practice in reaching his or her decision." Id. at 815. The
Board ruled in Atlantic Steel, on the basis of Kansas City
Star, supra, and presented explanation of the rationale of
the latter's holding as being, "because the finding were
both complete and comprehensive and factually parallel
to the unfair labor practice question." The Board con-
cluded in Atlantic Steel, that there was also present there-
in such a factual parallelism between the contractual
issue (one of legality of discharge involving consider-
ations of whether a discharge was for use of insubordi-
nate language to a supervisor, or instance of a supervi-
sor's continued harassment of an employee because of
prior involvement with a petition for benefits) and the
unfair labor practice issue as raised in complaint (alleged
unlawful discharge for protected activity, i.e., for intem-
perate, but protected employees words as spoken to a su-
pervisor during a grievance discussion). The Board ob-
served that the arbitrator, on the basis of a consideration
of all the testimony, made a determination of what had
actually occurred, that he had thoroughly considered all
of the evidence and had made factual findings supported
by the evidence; that he had passed upon all relevant as-
pects of the unfair labor practice; that in doing so, he
had considered those factors relevant to the unfair labor
practice that the Board considers; and that the arbitrator
had reached a result not repugnant to the Act. The
Board accordingly by deferred to both the arbitrator's
findings, and his decisional result.
Similarly, a Board panel majority2 4 later deffered
where an arbitrator, despite having made concurrent
statement that he was not deciding whether the employer
had violated Section 8(a)(5), nevertheless, had then pro-
ceeded in the course of resolving the contractual issue
presented, to make factual findings of nature which re-
solved the unfair labor practice issue, Bay Shipbuilding
Corp., 251 NLRB 809, 810-811 (1980). Thus, in Bay Ship-
building, the arbitrator had proceeded to make factual
findings in resolution of the contractual issue of whether
an employer's action in changing an insurance carrier
was permitted by an existing contract, or had violated
the contract. (The latter eventuality would in turn then
constitute a unilateral midterm modification of the exist-
ing contract, and argued unilateral action in violation of
a2 Panel decision was made by Members Murphy and Truesdale, with
Member Penello concurring.
"a Cited subsequently approving, e.g., G & H Products, 261 NLRB 298
fn. 2 (1982).
4 Panel majority consisted of (then) Board Members Penello and
Truesdale, with Member Jenkins dissenting.
the Act.) On considerations of prior negotiation state-
ments made by the parties leading to significant related
changes from the prior contract, the arbitrator deter-
mined the Company's contention that the Union had
freed the Company to change the insurance carrier, was
supported; and the arbitrator (on that basis) concluded
that the employer's action in later changing insurance
carrier was one permitted by the contract. On these
facts, Board majority concluded that the arbitrator's de-
termination that the contract had permitted the Employ-
er to make the change was not unreasonable, as there
had been a significant (related) change from the prior
contract, the matter was an important issue in the negoti-
ations, and union statements during negotiations might
reasonably be considered a concession on the point. The
Board also found that the result reached by the arbitrator
was not (clearly) repugnant to the Act. Thus, as the
action of the Employer, under the circumstances there
presented, was reasonably found to be an action permit-
ted by the contract, it was not a modification of that
contract, and hence, also, was not a unilateral action in
violation of the Act.2 5 However, where facts supporting
a specific union contract concession are absent, as essen-
tially, where abritrator decisional basis rests only on an
arbitrator approach of an Employer's (contract) right to
act unilaterally ". .. because the contract did not specif-
ically limit or restrict such actions," and in doing so has
ignored well-established Board precedent holding exactly
to the contrary, there has been resultingly no deferral by
the Board, cf. Alfred M. Lewis, Inc., 229 NLRB 757
(1977), modified 587 F.2d. 403 (9th Cir. 1978); Ciba-
Geigy Pharmaceuticals Division, 264 NLRB 1013 (1982).
In a recent reaffirmation of the requirement of Subur-
ban Motor Freight, supra,26 (and with a majority re-
newed rejection of an earlier contrary majority Board
holding in Electronic Reproduction Service Corp., 213
NLRB 758 (1974), the Board majority further explicated
that Board deferral policy permits, but does not require a
grievant's simultaneous litigation of all (contract and stat-
utory) issues before an arbitrator; that an employee
grievant may ". . . challenge disciplinary action solely
on the ground that discipline invoked for the stated of-
fense was inconsistent with the Employer's past practice
or otherwise violated contractual provisions unrelated to
the Act"; and that ". . . election to proceed in the con-
tractually created arbitration forum provides no basis, in
and of itself, for depriving an alleged discriminatee of the
statutorily created forum for adjudication of unfair labor
practice charges." Propoco, Inc., 263 NLRB 136, 137
2" In separate concurring opinion, Member Truesdale who had partici-
pated in the several majority opinions as earlier noted, including as a par-
ticipant of the majority in Suburban Motor Freight, supra, significantly ob-
served, id. 811 fn. 3, "Like Atlantic Steel, Suburban Motor Freight does
not require that an arbitrator pass on the unfair labor practice explicitly.
Rather, the Board stated that it would not defer to an award 'which
bears no indication that the arbitrator ruled on the statutory issue ....
Here the award does indicate, by virtue of the arbitrator's factual findings
and the virtually identical nature of the contractual and legal issues, that
the arbitrator passed on the unfair labor practice question."
s" The Board's expression of deferral standards in Suburban Motor
Freight, supra has itself received even more recent approval in being spe-
cifically upheld by the Sixth Circuit Court of Appeals in NLRB v. Mag-
netics International Inc., 699 F.2d 806 (6th Cir. 1983).
38
PINKERTON'S, INC.
(1982). Board majority opinion also therein related in
(general) regard to unfair labor practice issue(s) raised in
arbitration proceeding, that there are no special rules
(apart from Spielberg) ". . . concerning the manner in
which such an issue can be litigated in arbitration pro-
ceedings," id. at 138 fn. 8; but majority opinion in Pro-
poco, Inc., supra also held that Suburban Motor Freight's
requirements are not satisfied when the contractual and
unfair labor practice issues are factually parallel and the
arbitrator was presented generally with the facts relevant
to resolving the unfair labor practice issue, with state-
ment: "Merely considering the relevant facts does not
necessarily lead to consideration of the statutory issue."
Id. at 138.27 Seemingly preserved for appropriate defer-
ral are cases where the contract and statutory issues are
the same, or virtually identical, and/or with issue pre-
sented, the arbitrator has considered in resolving the
contract issue, the factors which the Board would con-
sider in resolving the unfair labor practice issue, thus
"implicitly," or latently deciding the latter issue as well.
The procedural questions resolved
Employer's motion for deferral was taken under ad-
visement; but its alternative motion to restrict the parties
to the evidentiary record solely made before the arbitra-
tor was initially denied. Thereupon the parties entered
certain supplemental stipulations of fact and both the
General Counsel and Employer made offer of certain ad-
ditional documentary evidence earlier noted. Employer
urges in brief that the supplemental evidence cannot now
be determined as in any way inconsistent with the arbi-
trator's findings because the General Counsel and the
"I In ropo Inc., supra, former (then) Member Fanning and Mem-
bers Jenkins and Zimmerman comprised the majority view, with (former)
Chairman Van de Water and Member Hunter dissenting separately. Ma-
jority held view that the unfair labor practice isue had neither been pre-
sented to, nor considered by the arbitrator, while both Chairman Van de
Water and Member Hunter held a contra-view. Otherwise, in dissenting,
Chairman Van de Water exrpessed his opinion as being one (esentially)
in disagreement with Suburban Motor Freight, as departing from sound
deferral policy; and that, even were he to agree to it in principle, ex-
pressed further disagreement with adding its standards viewing the same
as adminitratively unsound in that the standards "lack clarity," and ". ..
do not resolve but create problems of how thoroughly the statutory issue
has to be presented and how completely the arbitrator has to consider the
issue." Id. at 144. In its considerations of the question of "how thorough-
ly the statutory issue has to be presented" the Board majority had ob-
served the problem, to the extent it exists, will be no greater in the con-
text of arbitration proceedings than when it arises in context of certain
other (specified) proceedings, Id. 137. Member Hunter in his dissent
would apply standard (viewed as one comporting with approach used
previously by the Board) that would not require an arbitrator to pa ex-
plicitly on the unfair labor practice, ". . would find that the arbitrator
had adequately considered the unfair labor practice if (I) the contractual
issue is factually parallel to the unfair labor practice issue, and (2) it ap-
pears from the record that the arbitrator was presented generally with
the facts relevant to resolving the unfair labor practice." Id. at 145.
Member Hunter otherwise explicated hi view on Subhrban Motor
Freight: "My agreement with Suburban Motor Freight is limited to its
holding that deferral is unwarranted where the arbitrator is not presented
with the evidence relevant to the unfair labor practice." Member Hunter
noted certain prior Board holdings, and would appear to ascribe to the
(seemingly compatible) prior Board majority holdings in Kansas City Star
Co., supra, Atlantic Steel Co., supra; and Bay Shipbuilding Corp., supra. Id.
at 145 fn. 30. My own research has not revealed that Chairman Dotson
or Member Dennis have presently addressed these issues.
Charging Party have conceded that the proceedings
before the arbitrator were fair and regular.' 8
In Suburban Motor Freight, supra, it was held that the
party urging the deferral has the burden of proving that
the statutory issue (there of discrimination) was an issue
litigated before the arbitrator." In that regard, the relat-
ed submission of the specific grievances presented to the
arbitrator for resolution, and the submission of the full
text of the arbitrator's opinion and award, as was done
by Employer herein at hearing in support of its motion
for deferral under Spielberg, was sufficient to prima facie
meet the Respondent's burden on its raised Spielberg de-
fense, see, e.g., John Sexton & Co., 213 NLRB 794, 795
(1974). The Respondent's further submission of the arbi-
tration transcript and exhibits are serviceable for a prima
facie presentment in support of its contention, and re-
quired showing that the arbitration proceedings were fair
and regular and binding; and the same, in combination
with the submission of the grievances and text of arbitra-
tor decision, also serve as a prima facie presentment for
the conduct of the required review of the record by the
Board for an assurance that the arbitrator's findings are
consistent with the record evidence, and that there are
no facial errors in the arbitrator's factual findings, cf.
Kansas City Star Co., 236 NLRB 866, 869 (1978); Atlantic
Steel Co., 245 NLRB 814 fn. 2 (1979). 8 ° However, that
prima facie presentment by Employer does not necessari-
ly end an evidentiary inquiry. For the General Counsel
(or the Charging Party) may still seek to show by an ap-
propriate evidentiary offering that in some manner the
proceedings in fact were not fair and regular; that the
issue submitted to the arbitrator did not encompass the
unfair labor practice issue(s) raised in complaint and re-
latedly, that not all the relevant evidence bearing on the
statutory issue claimed omitted was presented; or as well,
desire to present evidence in combination with a conten-
tion to be raised that the decision of the tribunal was re-
pugnant to the purposes and policies of the Act, is at
odds with the statute, or that clear Board precedent
" The arbitrator noted: "Full opportunity was given each party for
the presentation of evidence, examination and cross examination of wit-
nesses. Each Party elected to file a post hearing brief." The General
Counsel of course was not a party in the arbitration proceeding.
Is The statutory issue was there one of discrimination, but the Subur-
ban Motor Freight holding is not limited to 8(aX3) issues, cf. Navajo
Freight Lines, 254 NLRB 1272, 1280 (1981).
so While former (then) Chairman Fanning and Member Jenkins have
since in a Board panel cue stated their intended nonreliance on Kansas
City Star Co., and Atlantic Steel Co., supra. e.g. see Designcraft Jewel In-
dustries, 254 NLRB 791 fn. 1 (1951), my own research has revealed no
clear Board majority reversal of either cue, nor did it appear therefrom
such has been clearly indicated. Thus Member Zimmerman has subse-
quently indicated a reliance on Atlantic Steel Co., e.g., see G & H Prod-
ucts, 261 NLRB 298 fn. 2 (1982), as does Member Hunter seemingly see
his dissent in Plopoco, 263 NLRB 136, 145 fn. 30 (1982). The majority
opinion in the Prapoco caue, which included Member Zimmerman, did not
specifically address the prior majority Board holdings in either Kansas
City Star Co. or Atlantic Steel Co., but rather that case holding rested on
a majority view of the facts presented in Propoco that the unfair labor
practice issue had not been even presented to the arbitrator, as well as
not really considered by the arbitrator. Seemingly with significant bear-
ing on earlier Board holdings however, is Board majority reference
therein to employee permissive forum choice in disciplinary challenge on
basis of past practice or contractual provision where unrelated to the Act.
39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exists to the contrary. See generally John Sexton & Co.,
213 NLRB 795 (1974).31
To be sure upon review of the arbitration record pre-
sented herein he the General Counsel and Charging
Party promptly acknowledged that the arbitration pro-
ceedings conducted therein were fair and regular and
binding. However, both as promptly otherwise raised
claim that the unfair labor practice issues raised in the
complaint were neither presented to, nor considered, nor
was there adequate indication that they were ruled upon
by the arbitrator. In contravention of certain arguments
advanced by the General Counsel and the Union, Em-
ployer made certain counterarguments based on claimed
"implicit" findings that were made by the arbitrator. I
conclude and find on the above and the record presented
on this issue as a whole, that certain of the claims ad-
vanced by the General Counsel and Charging Party
Union were arguable claims.
Furthermore, it seems to me that where such an argu-
able claim is raised as to a nonpresentment, nonconsider-
ation of, or insufficiently indicated ruling by an arbitrator
on an unfair labor practice issue(s), as herein, or when
related claim is made, as herein, that the arbitrator did
not have all the relevant evidence presented to him, that
a respondent who seeks to rest on a raised Spielberg de-
fense, even with prima facie presentment made thereon,
as above, may not by its own motion then foreclose the
other party(ies) from offer of the relevant evidence to
support such arguably counterclaims. Indeed the case of
Amoco Texas Refining Co., 251 NLRB 1528 (1980), ad-
vanced by Employer essentially as the support for its po-
sition, itself does not support the Respondent in that
stated purpose. Rather there, all parties, though with
countervailing party contentions advanced and preserved
by reservation on the arbitrator's legal conclusions, stipu-
lated a factual record as found by the arbitrator on
complaint/deferral issues; and they voluntarily forewent
offer of oral testimony. Accordingly, earlier ruling at
hearing denying the Respondent's alternative motion to
in effect limit the parties in bringing available evidence
before the Board on that authority to only the record
evidence presented to the arbitrator is reaffirmed, and to
extent Employer's motion is to be fairly construed as one
being renewed in that sense, it is again denied. Moreover
I reject any suggestion that evidence stipulated at open
hearing is not before me for a full, appropriate consider-
ation. However, to the extent Employer merely urges
that whether the arbitration proceedings herein provide
warrant for a Spielberg deferral remains the threshold
question, I do agree.
The substantive deferral issues resolved
The resulting threshold question is the one of Employ-
er's motion for a deferral. The issues are whether the
*' Any indicated evidentiary restriction that might be viewed as pre-
sented in John Sexton & Co., supra, in regard to an unfair labor practice
issue that could have been submitted (presented) to the arbitrator but was
not, as might be viewed to arise from Board majority reference therein to
Electronic Reproduction Service Corp., 213 NLRB 758 (1974), is clearly,
and effectively removed by the Board's (majority) explicit overruling of
the latter case in Suburban Motor Freight, supra, with its rejection now
reaffirmed in Propoco. Inc.., supra.
unfair labor practices alleged in complaint were previ-
ously presented to, considered by, and are adequately in-
dicated ruled on by the arbitrator, under existing Board
precedent. I begin with observation, as urged by Em-
ployer, that a de novo review of the evidence of record
before the arbitrator, as with view to a susceptibility of
that evidence to present inference of fact differing from
the facts found by the arbitrator, is procedurally not in
order in addressing the initial issue of requested deferral,
cf. American Bakeries, 249 NLRB 1249, 1251 (1980).
Rather the record made before the arbitrator has been
reviewed for its consistency with the findings made by
the arbitrator; and I have discerned no material facial
error in those finding that, in my view, would preclude
such a deferral.3 2 Moreover, the arbitrator's findings of
fact are otherwise observed to have been comprehensive
and fully supported by the record evidence; and his find-
ings of fact well support the conclusions he has reached.
It is readily apparent that the arbitrator made compre-
hensive and precise factual findings broadly covering the
administrative and operational business juxtaposition of
the Louisville branch office, the national office and the
Cincinnati Branch office. The arbitrator's findings pro-
jected: Employer's long conduct of business through na-
tionally structured, but separately and locally operated
branch offices, inclusive of the unionized Louisville
branch office and the nonunion Cincinnati branch office;
the Union's full and longtime awareness thereof.
The arbitrator also addressed the pertinent consider-
ations of the current and prior contracts between the
Louisville branch office and the Union, and the relevant
past practices thereunder, and as well considered the
Union's certification(s), all comprising elements of the
long history of their collective bargaining; that was ob-
served to warrant conclusion by him of an ultimate fact
that the Union's prior representation was of employees
employed by, or out of Employer's Louisville branch
office in various cities, and not limited to those named in
Board representation documents. The arbitrator also
found the more recent and continuing history of the
Louisville branch office's loss of business in the Lexing-
ton area to its nonunion competitor's on basis of low bid,
which had resulted in uncontested regression in its Lex-
ington business from that in years past being sufficient to
support a suboffice to that of a service provided to but
one remaining account, that it subsequently learned in
1981 that it was to also lose. The arbitrator addressed the
pertinent terms of the current agreement, and the rele-
vant prior 1980 negotiation positions of the parties that
led to their current agreement, inclusive, as material
herein, Louisville branch office Manager Liverett's
1a The sole apparent variance from record evidence appearing in a
finding is one of a seeming inadvertent transportation of date of job offer
made to Young. It involves the Burgin, Kentucky job offer by Employer
reported by arbitrator as occurring prior to Young's layoff, while only
job opportunity for his employment at the Cincinnati branch office clear-
ly appears of record to have been presented to him by Employer prior to
layoff, and with the only record (testimonial) evidence otherwise clearly
indicating the Burgin, Kentucky job offer was made to Young shortly
after Young's layoff and his filing of grievance. In the circumstances of
this case, the same, in my view, is not of material, certainly not control-
ling significance.
40
PINKERTON'S, INC.
candid proposal to make the Louisville branch office
more competitive in Lexington by staffing its future busi-
ness operations there with Louisville branch office em-
ployed guards who would be nonunion, that is, not have
union contract rates, etc., applicable to them; the Union's
rejection of that proposal after discussion, and the omis-
sion of that proposal from the terms of the current agree-
ment; the circumstances of notice (observed to be open,
prompt and in advance) to the Union by Louisville
branch office Manager Liverett that effective May 1,
1981, the Louisville branch office would no longer in-
clude Fayette County (Lexington area) and that the same
was to become a territory of the Cincinnati office; the
limited action of the national office in its reassignment of
responsibility for pursuing future Lexington business op-
portunities in Lexington to Cincinnati branch office; the
circumstances of the pursuit and subsequent success of
the Cincinnati branch office in the Summer and Fall of
1981 in obtaining the Brown and Williamson contract on
a low bid basis, and with a compared analysis of the fac-
tors that were indicative there would have been a contin-
ued failure on the part of the Louisville branch office in
an attempt to retrieve that contract because of its inabil-
ity to meet the successful low bid price submitted by the
Cincinnati branch office; and with concluding findings:
that Young was properly laid off because at that time the
Louisville branch office did so, it did not have any other
business in Lexington; and that Employer had not violat-
ed the contract because the Louisville branch office had
tried, in good faith, to procure further business in Lex-
ington but could not (with fuller record support of de-
scribed efforts); and because the national office had not,
under the terms of the contract and all the circum-
stances, acted unreasonably, arbitrarily, or capriciously in
its earlier reassignment of Lexington to its Cincinnati
branch office, because, at the time it acted, in the arbitra-
tor's judgment, the Louisville branch office's business in
Lexington was already gone. In short, in my view, the
arbitrator found all the facts of what happened, and in
doing so he concerned himself in making his factual find-
ings with circumstantial factors that the Board would
consider in its evaluation of related raised unfair labor
practice issues.
The General Counsel and the Union have essentially
contended that the arbitrator was presented with, and
had considered and decided only a contract issue; and
that there was resultingly inadequate indication of con-
sideration of the unfair labor practices raised herein, and
inadequate indication that the arbitrator ruled on the dis-
criminatory issues. First, to be sure, the arbitrator's ar-
ticulation in the framing of the issues presented (as com-
pared with his summary of their positions) was in terms
of whether there had been contract violations committed
by the Employer, as were essentially the parties' own ini-
tial presentment of the issues to him at the outset of arbi-
tration hearing. (In my view the Board certification was
presented by the parties to the arbitrator for relevant
consideration on the coverage issue, viz. for his interpre-
tation of the contract's recognition and purpose language
and to assist his understanding and evaluation of the par-
ties' related past practices under their agreements.) While
neither initial presentment by parties, or issue framing by
the arbitration in terms of contract violation is unusual,
and both may also support intended party restrictive sub-
mission of a contract issue only, neither, is controlling of
whether a contract issue alone had been presented to the
arbitrator.
The arbitrator's basic factfinding that there had been a
reassignment of Lexington from the unionized Louisville
branch office to the nonunion Cincinnati branch office
does not stand alone. Thus the arbitrator summarized the
Union's position (presentment) as inclusive of contention,
inter alia, that Employer's obligation to the Union (in
regard to Lexington) based on Board certification, col-
lective-bargaining history, and the contract was one that
a unilateral determination (by the Company) cannot
defeat. The Union also clearly presented a contention to
the arbitrator that the Company attempted, but failed in
the 1980 negotiations to include language which would
have excluded the Lexington area, among others, from
the jurisdiction of the bargaining unit, and that "The
Company should not now be permitted to unilaterally
accomplish the same result under the guise of a 'corpo-
rate reorganization."'
Moreover, there is merit in Employer's argument that
the Union's stated contention in its brief to arbitrator
constituted a further presentment of additional discrimina-
tion issues, there characterized as involving the Employ-
er's ". . . obvious antiunion purpose in unilaterally reas-
signing the Lexington area to the Cincinnati office .. .",
and which itself followed highlighted observance of re-
lated well established Board principle, ". . . that an em-
ployer's desire to escape a financial burden resulting
from the collective-bargaining process is not an adequate
justification to excuse an unlawful termination." I am
wholly persuaded therefrom and other evidence, that the
arbitrator effectively had presented to him, indeed by
both parties s3 an issue bespeaking in nature of bearing
on both the contended contractual issue of violation of
contract in Employer's unilateral administrative reassign-
ment of the Lexington area and failure to apply the con-
tract to guards working there, and one as clearly, in my
view, raising the related arguable unfair labor practice
issue of an employer unilateral action therein in violation
of Section 8(aXS), and under the circumstances, with at-
tendant claimed employee loss of jobs, of Section 8(a)(3),
as well.
2" The Employer's own brief to arbitrator in anticipation of "unilater-
ally implementing" argument from the Union had urged upon the arbitra-
tor that honest analysis of their proposal to the Union during negotiation
will show that in reality
... [tihe company was attempting to honestly deal with the
Union in response to a deteriorating competitive position. The pro-
posal was an attempt to deal with continuing service out of the Lou-
isville office not a transfer of operations to another office. Moreover.
the proposal was not implemented, notwithstanding that as demon-
strated above the company had the right to do so. The P. Lorillard
guards were permitted to remain employees of the Louisville branch
office (and draw union wages) untii the P. Lorillard contract ex-
pired, even though the transfer of Lexington to the Cincinnati
branch office had already taken place. Also, the remainder of the
proposal (e.g., the rural areas where non-union companies had indi-
cated an aversion to union guard service) was never implemented,
and those locations are still serviced (albeit non-competitively) by
the Louisville branch office.
41
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In short, the stated contractual and unfair labor prac-
tice issues do present factual parallelism; and the specific
8(a)(5) unfair labor practice as alleged herein, namely of
unilateral withdrawal of recognition from the Union as
representative of the employees (then) employed in Lex-
ington (by the nonunion Cincinnati branch office), if not
also constituting the contractual and statutory issue the
same issue by virtue of being properly to be viewed as
but another facet of the same issue of reassigment of
Lexington, at least, is virtually the identical issue in ad-
dressing but an effect that followed the Employer's same
act of reassignment of Lexington to the Cincinnati
branch office and its refusal to thereafter recognize the
Union as the representative of employees employed by
that nonunion branch office. Thus, whatever view of ini-
tial contract issue presentment by the parties one takes
vis-a-vis initial reference to Board certification, it is clear
that neither party continued to so restrict their own pre-
sentment; a factor early and long considered of real sig-
nificance in resolving deferral issues, cf. Raytheon Co.,
supra, and Propoco, Inc., supra.
In passing, it is relatedly observed that though only
one employee (Young) grieved, and his grievance on its
face presents essentially only a seniority (contract) claim,
the Union's concurrent general grievance was more
broadly based and the Union thereon specifically pre-
sented claim that their contract covered any Pinkerton
guards in the Lexington area, thus inclusive of Young's
contract rights in that regard, as did its general charge
herein extend to a complaint allegation of discriminatory
refusal to recall from layoff all five named employees
laid off from P. Lorillard in Lexington. In that regard it
is additionally significant that the arbitrator found the
grievances of Young and the Union were interrelated,
and there is surely much support for that finding. I con-
clude and find that in substance and effect, the arbitra-
tor's opinion and award effectively extended to all the
employees named in complaint, wholly aside from a con-
sideration of the supplemental detailed evidence offered
to that effect.
It is also clear enough that the arbitrator considered
and ruled on the above issues variously centering around
prior negotiations and the claims of unilateral administra-
tive action in Employer's reassignment of Lexington, ob-
vious antiunion and avoidance of contract purposes. On
the evidence presented, the arbitrator effectively found
to the contrary. Firstly, he found that the Louisville
branch office did not subsequently obtain any nonunion
business in Lexington, but rather there had been an on-
going loss of business by it; that it had tried, in good
faith, to obtain further business in Lexington but had
failed in its efforts; that its loss of business in Lexington
had taken place because of prevailing business condi-
tions; that the cause of the problem was that the Louis-
ville branch office with whom the Union had dealt from
the beginning of its existence could not competitively
retain the business that it once had in Lexington. Second-
ly, while the arbitrator was well aware of the possibili-
ties for a questioning of cause of loss of business in a sit-
uation such as this, he concluded the reaction of the na-
tional office here was one in nature of doing something
about the above loss of business by its Louisville branch
office; and given all the circumstances, it was not arbi-
trary, capricious, or unreasonable; and he ruled nor were
Louisville branch office employees effectively discrimi-
nated thereby, as in the arbitrator's judgment the Lexing-
ton business area was substantially and effectively gone
for the Louisville branch office at the time the national
office acted. The arbitrator also found that the unionized
Louisville branch office and the nonunion Cincinnati
branch office operated separately; and that the Cincinnati
branch office was thereafter successful in obtaining the
new contract from Brown and Williamson (an account
that the Louisville branch office had itself lost and could
not retrieve), on the basis of a low bid, one that the Lou-
isville branch office itself could not meet. In my view,
these findings and conclusions are sufficient indications
that the arbitrator in addressing and making such factual
findinqs and conclusions was concerning himself in his
factual analysis with an evaluation of the facts bearing on
all the Union's above-raised concerns, inclusive of those
with potentially antiunion, or discriminatory purpose. He
found the reasons to be of economic base.
On the basis of the same findings of the arbitrator, I
further conclude and find that the arbitrator's decision is
not one to be viewed herein as clearly repugnant to the
purposes and policies of the Act; nor is it one palbably
wrong or contrary to existing Board precedent.
The arbitrator explicitly found that the national office
had not acted on whim. Nor was the arbitrator persuad-
ed to earlier union urgings (essentially the same as raised
by the General Counsel herein) that the Employer's pur-
pose was obviously antiunion and constituted a unilateral
circumvention of its contractual obligations, in light of
related party joined issue presentments thereon (inclusive
of those in briefs submitted to the arbitrator), the find-
ings he made, and the arbitrator's clear statement of an
assurance to the parties that their efforts had been of as-
sistance to him in understanding the issues and in reach-
ing a decision; and pointedly, in rendering his opinion
that he had considered all of the arguments made on
behalf of the grievants. In that connection I have careful-
ly considered the ably framed, but related contentions,
by the General Counsel that the Employer has here
sought by an administrative fiat to effectively sever a
part of an established bargaining unit and/or remove bar-
gaining unit work from the Union, and the separate point
made by Charging Party Union that, "IN]otwithstanding
the fact the bargaining unit is no longer allowed by Pin-
kerton's to service Lexington, Kentucky area employers,
Pinkerton's nevertheless continues to provide guard serv-
ice in that area," as pointing up effectively that the reas-
signment of the Lexington area by the national office
had a twofold effect, one of opening up that territory to
business opportunity by its nonunion Cincinnati branch
office, and of foreclosing such to its unionized Louisville
branch office; and (as seemingly noted before the arbitra-
tor) that it did so without further bargaining.
The basic contention made herein by the General
Counsel and the Union is essentially the same, that the
Employer has sought to solve a problem the Louisville
branch office had, by a prohibited unilateral midterm
modification of the contract between its Louisville
42
PINKERTON'S, INC.
branch office and the Union. The problem in turn with
any efficacy In that contention, is the one already noted
in answer given by the arbitrator, viz., that the fact was
that the Louisville branch office had not been able previ-
ously to obtain additional work in Lexington for the em-
ployees it employed in Lexington because its higher
wages, benefits, etc., paid union members had to be re-
flected in its bid submissions, and it also did not thereaf-
ter obtain nonunion work. The short answer to the
above-contended unilateral midterm modification conten-
tion, it seems to me, is thus that the arbitrator, on a full
record, has effectively found the facts to be the contrary.
That is the clear import of his findings essentially that
though the Louisville branch office had tried in good
faith to obtain further business in Lexington, it could not
do so because of prevailing business conditions; that the
proposal by the Louisville branch office during negotia-
tions that it in effect be allowed to operate nonunion in
Lexington was its own candid proposal as one competi-
tive solution to its uncontested deteriorated business base
there; and that the national office in later reassigning
Lexington from its unionized Louisville branch office to
its nonunion Cincinnati branch office was explicitly nei-
ther done on whim, nor arbitrarily or unreasonably, but
was its own attempt to deal with the Louisville branch
office's terminal Lexington business base. Nor did he find
the national office had discriminated against employees
(then) employed by the Louisville branch office because
by the time it acted in reassigning the Lexington terri-
tory from its Louisville branch office to its Cincinnati
branch office, the business opportunities in Lexington for
the Louisville branch office in the arbitrator's judgment,
were already effectively gone. It seems to me that is the
critical finding that the arbitrator has made, that resolve
the grievances, and resolves this case.
The arbitrator's judgment is itself one clearly support-
ed by the facts he has found; and in my mind's eye, it
cannot be questioned herein without effectively engaging
in a prohibited review of the record made before the ar-
bitrator in exploration for any possible inferences of fact
differing from the facts he has found. This arbitrator, in
my view, did not rest his decision simply on an absence
of a restriction of Employer authority in the contract.
First, he affirmatively found that the Employer operated
through separate branch offices. Secondly, he analyzed
the circumstance of both branch office and national
office. He found that the Union did not agree to the
Louisville branch office's relief proposal (in regard to
Lexington) made in negotiations; and he further found it
was not made a part of the contract. However, the arbi-
trator then found the fact to be that the Louisville
branch office did not later obtain (nor did it appear that
it even sought to pursue) any nonunion work in Lexing-
ton. He also brought to bear industrial realism in address-
ing and analyzing what the national office did. Relatedly,
but significantly so, there was no transfer of bargaining
unit work here, that the Louisville branch office then
had, to the Cincinnati branch office; nor in light of the
above arbitrator findings any reasonably to be viewed re-
location of anticipatory bargaining unit work to which
the bargaining unit employees employed by the Louis-
ville branch office might be arguably (at best) viewed as
justly entitled under the terms of their existing contract,
as is essentially claimed by the General Counsel. To the
contrary however, the arbitrator found the presently
held bargaining unit work of the Louisville branch office
in Lexington, though known to be itself terminal, was
nonetheless retained by the Louisville branch office until,
without renewal, it ended on December 31, 1981; and
the arbitrator otherwise found the realistic fact on the
hard issue presented him, that by the earlier time the na-
tional office had reassigned Lexington, away from its
Louisville branch office to its Cincinnati branch office,
further business opportunities no longer existed for the
Louisville branch office under the prevailing business
conditions.
Consequently, absent evidence of transfer of bargain-
ing unit work, or of a relocation of bargaining unit work
or employees it would appear that the cases basically
relied on by the General Counsel, viz., Brown Co., 243
NLRB 769 (1979); and Los Angeles Maine Hardware Co.,
235 NLRB 720 (1978), to show repugnancy, are for such
reasons inter alia to be readily distinguished. Moreover,
the cases of A-i Fire Protection, 233 NLRB 38 (1977), re-
manded 600 F.2d 918 (D.C. Cir. 1979), reaffd. 250
NLRB 217, 219 (1980), and Ingersoll Rand Co., 247
NLRB 801 (1980), as urged by Employer as showing the
arbitrator's decision was not palpably wrong, appear the
more apposite.
There was no specific finding as to lack of deceit
being practiced here by the Employer; nor explicit nega-
tive as to any determined effort by Employer to under-
mine the Union, or destroy the bargaining unit found.
However, the arbitrator did affirmatively find the thrust
of Manager Liverett's 1980 bargaining proposal to be al-
lowed to operate nonunion in Lexington was his candid
attempt to deal with the Louisville branch office's (un-
contested) deteriorated business base in Lexington; the
arbitrator relatedly found facts revealing there was
notice given the Union by Manager Liverett of Employ-
er's prospective change of reassignment of the Lexington
area to the Cincinnati branch office, known by the Union
to be nonunion; and the arbitrator found that the national
office's subsequent reassignment of the Lexington area
(where its Louisville branch office's competition had
been all nonunion) as the national office's attempt to deal
with its Louisville branch office's terminal business con-
dition there; an action, the arbitrator found under all the
circumstances to be itself not arbitrary, unreasonable, or
effecting a discrimination upon Louisville branch office
employees. "s
Neither was the matter viewed as one involving
waiver issue. In addition to the arbitrator's affirmative
findings that Liverett's 1980 proposal (to exclude Lexing-
ton) was rejected and never put in the contract, he perti-
nently ruled:
34' That the Louisville branch office manager had later informed the
employees working in Lexington (at P. Lorillard), soon to be laid off by
Louisville branch office because of lack of work, of opportunities for
their employment in Lexington by the Cincinnati branch office, facts also
found by the arbitrator, while not deemed automatic grounds for dismis-
sal of 8(aX3) allegations as urged by Employer, nonetheless are wholly
compatible with the arbitrator's addressment of other facts bearing on
union claim of improper Employer motivation
43
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The reality is that the lack of business in the Lex-
ington area by the Louisville branch office of Pin-
kerton's, Inc. did not come about because the Union
gave up jurisdiction, nor because the Company arbi-
trarily took their jurisdiction away, nor because this
arbitrator is putting his stamp of approval on a com-
pany act.
The arbitrator, in effect, refused to declare that theUnion's contract negotiated with the Louisville Branch
Office had application to the employees then working in
Lexington, who were employed by the Cincinnati
Branch Office, as had been urged by the Union. Rather,
he wholly denied the grievances, finding the contract
had not been violated by Employer, after first finding
that Louisville Branch Office's business opportunities in
Lexington had decreased to a point of realistically being
viewed as already gone; that the national office had not
acted unreasonably in reassigning Lexington when it did,
nor under the above circumstances discriminated against
employees employed by the Louisville Branch Office;
and that the Cincinnati Branch Office was thereafter able
to obtain (increase) business in Lexington because it
could compete in Lexington's nonunion business climate,
whereas the Louisville Branch Office, over a number of
recent years was observed to be unable to do so.
The Board has heretofore addressed similar case cir-
cumstances in its consideration of the business activities
of "double breasted" company operations of a joint em-
ployer, one company being established to seek union
business, and another to seek nonunion business oppor-
tunties, cf. A-I Fire Protection, supra. In that case it was
found that there was no transfer of bargaining unit work.
There was also present no concealment by the employer
there, at least later in material time, of the nonunion
company's establishment, and operation in the area. It
was concluded that the mere increase in nonunion busi-
ness operation and decrease in union business operation
did not warrant inference that there was discrimination
practiced against the Union's contract bargaining unit;
and that the joint employer did not violate Section
8(a)(5) in its refusal to enlarge the Union's bargaining
unit (by applying the union contract to nonunion busi-
ness operation), on the basis that the union had estab-
lished no statutory right to represent the employees of
the nonunion company.
Here the Union similarly has established no statutory
right to represent the employees of the nonunion Cincin-
nati branch office except to the extent it may successfully
lay claim to represent all employees employed in Lexing-
ton as a territory on basis of its contract, past practices
of the parties and certification(s). But the arbitrator spe-
cifically considered each such argument, and he found
that the Union's position did not prevail on any of these
three elements. Thus the arbitrator clearly found that the
Louisville and Cincinnati branch offices had conducted
separate operations; and in denying the grievances, the
arbitrator obviously declined to extend the Union's con-
tract with the Louisville branch office to the employees
employed by the Cincinnati branch office in Lexington,
on the basis of the terms of that contract, past practices
of the parties, or the Board's certification, for reasons
earlier stated. I need only further address General Coun-
sel's additional contentions as to one of those elements,
namely the arbitrator's addressment of the Board's certi-
fication,3 5 and the twofold contention of the General
Counsel that there should be no deferral herein firstly
because involved was a representation issue, and a ques-
tion of appropriate unit; and secondly, that in his consid-
eration of the Board's certification, the arbritrator con-strued the certification erroneously. I address the latter
contention, first.
There is no question that the parties to the arbitration
had squarely presented an issue of the import of the
Board's certification as a factor to be considered by the
arbitrator in resolving the grievances brought under the
contract; nor is there question, in light of clear arbitrator
addressments thereon, that the arbitrator had stated his
view and judgment on the issue of Lexington as claimed
"union territory" under the certification. Thus the arbi-
trator's essentially first stated view was that ". . . that
footnote was descriptive of the then extent of the Com-
pany business. To read more than that into it would not
be realistic. Business changes. Therefore a description of
an entity's business is subject to change." Reciting that
the Union has argued that the arbitrator must determine
whether Lexington was an area covered by, inter alia,
the certification, the arbitrator went on to hold, as earlier
noted: "With respect to the certification document it is
my judgment that the most can be said about the territo-
ries or cities named in them is that the Union has juris-
diction to the extent that the Louisville Office continues
to have business in them." a3
The General Counsel cites no authority for his urged
contraconstruction of the certified unit. It is claimed es-
sentially that Employer's employees who work in Lex-
ington, irrespective of by what branch office they are
employed, are within the certified unit. The fallacy in
the argument would appear to rest in a failure to consid-
er Louisville branch office operation a separate oper-
ation. Employer would appear to have overgeneraliZed
also in urging that the scope a certified unit may not in a
given case be described by an area, cf. Heating, Piping &
Air Conditioning Contractors, 110 NLRB 261, 263 fn. 12
(1954). I need not address other contentions urged by
Employer vis-a-vis work assignment. Rather, I address
the appropriate unit description in this case, the meaning
of which would appear to be sufficiently plain on its
face, and confused only by the circumstances found by
the arbitrator of the Louisville branch Office decrease in
s5 On the matter of contract coverage, it is readily apparent that the
arbitrator's finding that the Union's Louisville branch office's contract
(and party practices) was not applicable to Cincinnati branch office em-ployees, is supported by record evidence, and concurs with Board prece-
dent, cf. B & B Industries, 162 NLRB 832, 834-835 (1967).3s The arbitrator also addressed and found a consonant practice. Thus,
he found that the Union's members did not enjoy employment in Lexing-
ton because that was their territory; that they had enjoyed employment
in Lexington because the Louisville branch office of Pinkerton's, Inc.
with whom they negotiated was able to successfully bid for business inLexington; and that someone in the Union would have been employed in
other cities (whether or not mentioned in the NLRB certification docu-ments), if the Louisville branch office had been the successful bidder forguard service in them; and that the evidence clearly established that this
was the case in many cities in both Kentucky and Indiana.
44
PINKERTONS, INC.
business, as that of Cincinnati branch office opened and
increased.
The appropriate unit for which the Union was last cer-
tified is one of all guards of the Employer employed by its
Louisville, Kentucky branch office. One need not go fur-
ther in consideration to resolve the instant matter under
consideration. If an employee is not employed by Em-
ployer's Louisville branch office either directly, or indi-
rectly, e.g., constructively, by operation of law, by
virtue of being only unlawfully employed by some
branch office elsewhere as in meritorious unfair labor
practice charged, then in my view, the employee is not
an employee within the scope of that certified unit. That
is the issue that the arbitrator already reached under the
contract terms and past practices; and with union (indeed
both party) urging, in the light also of the prior Board
certification. To be sure the underlying Decision and Di-
rection of Election gave clarification that such employ-
ees employed by the Louisville branch office were em-
ployed by Louisville were located not just in Louisville,
but, inter alia, in Lexington. But the unit description does
not say that it covers all of Employer's employees who
(may ever) work in Lexington (irrespective of their em-
ployment by the Louisville branch office). There is merit
in Employer's early argument that it did not describe,
nor was the Union here certified as the representative of
all of Employer's guards who may work inter alia in
Lexington. Though that might have also described an ap-
propriate unit, it is not the unit for which the Union was
certified herein. While the arbitrator's overview of the
Board's certified unit may have connotations of some
oversimplification, on the facts of this case, his findings
are essentially consistent with respect to both Board unit
principles, as I view it, and, as the arbitrator has found,
conformed to party past practices since that certification.
I next and last address the General Counsel's contention
that the arbitrator's decision should not be deferred to
because he has construed a Board certification, and ergo
there was a representation issue involved, and an appro-
priate unit issue on which matters the Board has stated
consistently it would not defer.
The General Counsel would rely on cases, e.g.,
Cannon Air Conditioning Co., 252 NLRB 556, 557 (1980);
and Ortiz Funeral Home Corp., 250 NLRB 730 fn. 2
(1980). Apart from Cannon Air involving a Collyer defer-
ral, it was viewed by the Board inter alia, as involving
an accretion, id. at 556 fn. i, and cited, e.g., Williams
Transportation Co., 233 NLRB 837, 838 (1977), where the
Board said:
The determination of questions of representation,
accretion, and appropriate unit do[es] not depend
upon contract interpretation but involve[s] the ap-
plication of statutory policy, standards and criteria.
These are mattters for decision of the Board rather
than an arbitrator.s7
s7 For development of Board prior deference to arbitrator in represen-
tation proceedings, cf. Raley's Supermarkets, 143 NLRB 256 (1963), and
Goodyear Tire d Rubber Co., 147 NLRB 1233 (1964); and see limitation
to one of contract interpretation, exclusive of accretion, e.g., of new
plant, Hershey Foods Corp., 208 NLRB 452, 457 (1974); and cf. Combus-
tion Engineering, 195 NLRB 909 (1972).
The Ortiz Funeral Home case, supra, was held by the
Board to involve an issue of representation and appropri-
ate unit. There it was determined by an administrative
law judge in review of an earlier unfair labor practice
proceeding terminating before another administrative law
judge earlier in settlement, that earlier arbitration provid-
ed for had not resolved the underlying unit composition
issues as anticipated in the arbitrator failing to properly
distinguish between office clerical employees and plant
clerical employees; and Board's standards for "dual func-
tion" employee inclusions, issues resolved by community-
of-interest consideration.
A Board certification is a conclusive determination of
a bargaining unit. It may be varied only by the Board, or
by mutual agreement of the parties, cf. Hunt Brothers
Construction, 219 NLRB 177 (1975). While the question
whether the existing contract covered employees em-
ployed in Lexington by the Cincinnati branch office
hired after its effective date would be a proper question
for the arbitrator, his decision would clearly not govern
an accretion issue. Combustion Engineering, supra.
The Union, however, has never claimed to directly
represent employees employed by the Cincinnati branch
office; or, pursue claim that it represented the employees
recently employed by the Cincinnati branch office and
now working in Lexington, as an accretion; but rather
has based its claim solely under claim of Lexington being
their territory under the contract(s), past practice (con-
sidered earlier) and presently pertinently the Board's cer-
tification.
Thus no party has sought herein to raise claim of
union representation by accretion, nor could it be done
effectively on the facts found by the arbitrator, and of
record stipulated herein, cf. Hershey Foods Corp., 208
NLRB 452, 457-458 (1974); and Kaiser Foundation Hospi-
tals, 228 NLRB 468, 470 (1977). Neither does this case
involve traditional questions of what is the appropriate
unit, as may be occasioned by Employer expansion of fa-
cilities and/or rival union claims of representation, cf.
Marion Power Shovel Co., 230 NLRB 576, 578 fn. 7
(1977);38 nor does it involve similarly transfers of unit
work; disputed (new) classifications placement; new
plant establishment; or close down and reopen issues.
Thus this case does not appear to be one to be disposed
of by community-of-interest factors. In short I do not be-
lieve the core of this controversy to be as to an issue of
appropriateness of unit at all.
The core of the controversy before the arbitrator
clearly was one of contended contractual coverage and
application with arguments based on contract terms, past
practice, and related prior Board certification. The case
of the unfair labor practice controversy here, it seems to
me, rests on the same territorial claim under the Board's
certification, which the arbitrator did address, at prior
urging of the parties, has already resolved, in a manner
which does not do violence to the construction the
Board would actually apply, in my view.
3s In that case the Board observed that the appropriateness of defer-
ring to arbitration depends on the nature of the dispute involved.
45
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It now goes without saying that the Board may, in
similar matters at any time invoke ". . . its superior au-
thority to pass upon and if necessary remedy unfair labor
practices." Carey v. Westinghouse Corp., 375 U.S. 261, 272
(1964). But it would appear to me to be parodoxical to
do so where, as herein, the arbitrator has already made
comprehensive findings that have effectively resolved
the unfair labor practices under existing Board precedent
in a manner not clearly repugnant to the Act;3 9 and in
doing so, for the parties, and with colorable warrant to
do so in their urging for interpretative coverage of the
contract, has in the end construed the certification, in my
view, as the Board essentially would construe it.
Finally from the opening statements of the parties
made to him, the arbitrator grasped the hard question
brought to him, promptly assuring the parties he already
felt its burden. He has now resolved the parties com-
plaints and contentions, which in my view parallel the
unfair labor practices charged herein, with findings com-
prehensive of all the mutual concerns the parties had
presented and expressed to him in the arbitration pro-
ceeding and parties' briefs, in a well-founded opinion and
award, one well reasoned, and with judgment based on
industrial realism. The issues he was faced with, collec-
tively, parallel the instant unfair labor practices and in
making the findings of fact in resolving his contract
issues, in my view, there is sufficient indication in his
opinion and award that he ruled on all of them, under
applicable Board precedent. As the holding of the arbi-
trator was a narrow one, limited by the unique facts
shown as to Lexington, so would be a Board's deferral;
s9 See also The Liberal Market, 264 NLRB 807 (1982). Here the facts
found by the arbitrator relatedly do not portray a transfer of Louisville
branch office bargaining unit work, but essentially the national office's
resolution of the question given the prevailing business conditions in Lex-
ington, and Louisville office failure, of whether the Employer was going
to seek to do business in Lexington at all.
and, as the test is not whether the Board would necessar-
ily have determined the issue as the arbitrator did, but
that the arbitrator's decision not be clearly repugnant to
the purposes and policies of the Act, nor palpably
wrong, neither of which is apparent, I would in the end
recommend that the Board defer. 40
CONCLUSIONS OF LAW
1. Pinkerton's, Inc. is an employer within the meaning
of Section 2(6) and (7) of the Act.
2. Local No. 71, International Guards Union of Amer-
ica is a labor organization within the meaning of Section
2(5) of the Act.
3. There is warrant shown by the Employer for the
Board to defer, under its Spielberg policy of deferral, to
the opinion and award of arbitrator David L. Beckman,
dated June 22, 1982, which has already resolved the
same, or virtually identical issues as are raised in the
complaint herein in Case 9-CA-18038.
Based on the foregoing findings of fact and conclu-
sions of law and on the entire record in this proceeding,
I issue the following recommended 41'
ORDER
IT IS HEREBY ORDERED that the complaint herein be,
and hereby is, dismissed in its entirety.
40 I have carefully considered the supplemental evidence offered by
the parties and I find nothing therein presented to persuade to finding the
unfair labor practices raised herein were not previously presented and
considered, or insufficiently indicated ruled on by the arbitrator under
the considered Board precedent.
4 If no exceptions are filed as provided in Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
46