Professional Porter & Window Cleaning Co., Division of Propoco, Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1982

263 N.L.R.B. 136 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Professional Porter & Window Cleaning Co., Divi-
sion of Propoco, Inc. and Margaret Bailey.
Case 29-CA-8144
August 4, 1982
DECISION AND ORDER
On June 18, 1981, Administrative Law Judge
James F. Morton issued the attached Decision in
this proceeding. Thereafter, counsel for the Gener-
al Counsel filed exceptions and a supporting brief,
and Respondent filed a reply to the exceptions of
the General Counsel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent did not violate the Act by discharging
employee Margaret Bailey because of the letter
which she wrote to the administrator of the Brook-
haven Beach Health Related Facility. We find
merit in the General Counsel's exceptions, and for
the reasons below we find that Bailey's discharge
violated Section 8(a)(l) of the Act.
As noted by the Administrative Law Judge,
Brookhaven's management agreed in June 1979 to
have Respondent provide the cleaning services
which had previously been performed by Brookha-
ven's own maids and porters. Following this agree-
ment, many of Brookhaven's maids and porters
became employees of Respondent, and they contin-
ued to be represented by the Union as they had
been while in Brookhaven's employ. Soon thereaf-
ter, employees Bailey and Mary Giles complained
to Supervisor Mary Ann Corino that Respondent
was supplying the maids with soft brushes and
weak, ineffective cleaning solutions which made
their work more difficult. They contended that the
firmer brushes and stronger solutions which Brook-
haven had formerly supplied had required them to
expend less effort.
Bailey and Giles were also displeased with the
manner in which they were supervised by Corino.
As noted by the Administrative Law Judge, Bailey
testified that Corino "stood over" the maids and
criticized them as if they were children. According
to Bailey, complaints to the Union would bring a
temporary relaxation of the pressure from Corino,
but after a few days the problem would resurface.
In May 1980, Corino informed the maids that
they would subsequently be required to mop the
bathroom floors, a task formerly performed exclu-
sively by the porters. However, the Administrative
Law Judge found no evidence that the maids were
ever actually required to perform this work.
263 NLRB No. 34
On June 23, 1980, Bailey wrote the following
letter to Mr. H. Rothman, the administrator of
Brookhaven:
Dear Sir:
The Housekeeping Dept. feels that it is time
for you to be made conscious of the fact that
this facility is deteriorating.
The Professional Porter Service Company
has done nothing to enhance the interior of
this facility.
The Professional Porter Service Company
has taken everything away from the House-
keeping Dept. that is needed to clean the fa-
cility with. The products that are used now
have been diluted with so much water that
[they are] no good.
The Professional Porter Service Company is
making the hallways, the dining area, and the
day-room floors look good, but the floors are
not really being cleaned.
Now on top of all the dirt and the germs,
Professional Porter Service Company is de-
manding that the maids do the porter's work,
and the porters do the maid's work.
Mr. Rothman, this is very humiliating to the
Housekeeping Dept, and to the facility. So
when you are in the facility again, just take a
good long look at what the Professional Porter
Service Company is doing to your facility.
Again, we feel that it is our duty to inform
you of the situation before it is too late.
Bailey, Giles, and eight other maids signed the
letter, which Bailey presented to Rothman. Roth-
man subsequently informed Respondent's president
that if Respondent could not handle its internal af-
fairs he would replace it with another company.
Respondent then sought to have Bailey apologize
for the letter, and Bailey was discharged when she
refused to do so. Bailey filed a grievance, but an
arbitrator found that she had been discharged for
cause.
1. The Administrative Law Judge concluded that
the arbitration award was consonant with the poli-
cies of the Act, and he dismissed the complaint in
deference to it, finding that the arbitrator had con-
sidered the issue of whether the letter reached the
level of public disparagement necessary to have de-
prived Bailey of the protections of the Act. We
find, in agreement with the General Counsel's ex-
ceptions, that deferral is inappropriate under the
circumstances of this case.
The Board has held that it will not honor the re-
sults of an arbitration proceeding unless the unfair
labor practice issue involved was both presented to
136
PROFESSIONAL PORTER & WINDOW CLEANING CO.
and considered by the arbitrator.' Here, as noted
by the Administrative Law Judge, the attorney
who represented the Union in the arbitration pro-
ceeding testified that he submitted no evidence to
the arbitrator on whether Bailey's discharge was an
unfair labor practice. He also testified that the issue
was not litigated in any respect in that proceeding,
and he indicated that his only contention was that
Bailey's discharge was discriminatory in view of
Respondent's failure to impose discipline upon the
other employees who signed the letter. Although
the attorney did provide the arbitrator with a copy
of the Board's complaint, he testified that he did so
only to prevent the arbitrator from drawing an ad-
verse inference from a determination by the Divi-
sion of Unemployment Compensation of the State
of New York that Bailey's discharge had been for
cause.
As the Administrative Law Judge found, the ar-
bitrator conceded that the complaint in the instant
proceeding was not before him for determination.
The arbitrator's decision also states that
"[a]lthough [Bailey] was afforded a full opportuni-
ty to present every phase of her case, surprisingly,
other than the NLRB documentation referred to,
she did not mention or was it even suggested in her
presentation, that she was discharged because she
had 'joined or assisted the Union' or had 'engaged
in other concerted activity for the purpose of col-
lective bargaining."' Nonetheless, the arbitrator
concluded that Bailey was not discharged because
of union activity or any other conduct protected
by the Act.
In view of the foregoing, we conclude that the
unfair labor practice issue before us was neither
presented to nor considered by the arbitrator. In
the latter regard, we find that the arbitrator's gra-
tuitous statement that Bailey was not discharged
for protected activity does not indicate any real
consideration of the statutory issue. 2 Accordingly,
we decline to defer to the arbitrator's award.3
I Suburban Motor Freight. Inc., 247 NLRB 146 (1980); also see Airco
Industrial Gases-Pacific. a Division of ,ir Reduction Company, Incorporat-
ed, 195 NLRB 676 (1972); and Raytheon Company, 140 NLRB 883 (1963).
a In this connection we also find that the arbitrator's characterization
of Bailey's letter as being "libelous" and "akin to extreme insubordinra-
tion" is not equivalent to a finding of disparagement or disloyalty such as
to render Bailey's conduct unprotected under the Act. We note that the
arbitrator considered none of the issues, discussed inJra, which arise in
connection with the issue of disparagement. We also note that, in discuss-
ing his findings, the arbitrator asserted that Bailey would have to be
ready to "prove [the] validity" of the charges in the letter or "suffer the
penalty of disimssal." As discussed infra at fn. 12, whether a statement is
protected under the Act is not determined by its truth or falsity.
3 Under the circumstances, we perceive no need to venture an opinion
whether deferral would have been appropriate if the unfair labor practice
issue had been presented to and considered by the arbitrator in making
his award. Consequently, we shall not respond to Chairman Van de
Water's statement in his dissent that the award was not clearly repugnant
to the Act. We note, however, the irony of the Chairman's heavy reli-
ance on the Third Circuit's decision in N.LR.B. v. Pincus Brohers. Inc.-
We are unpersuaded by Chairman Van de
Water's criticism of our adherence to Suburban
Motor Freight's requirements that the statutory issue
be both presented to and considered by the arbitra-
tor. The Chairman states that once the arbitral
forum has been invoked "the grievant should be re-
quired to raise any statutory issues before the arbi-
trator or be precluded from subsequently raising
them before the Board." In essence, the Chairman
urges a return to the rule of Electronic Reproduction
Service Corporation, et al. 4 which the Board ex-
pressly overruled in Suburban Motor Freight. In the
latter case, we stated that "[t]he Board can no
longer adhere to a doctrine which forces employ-
ees in arbitration proceedings to seek simultaneous
vindication of private contractual rights and public
statutory rights, or risk waiving the latter." 5
We adhere to the established position in Subur-
ban Motor Freight that the Board will not defer in
situations where it determines that the statutory
issue either was not presented to or was not con-
sidered by the arbitrator. A grievant may choose to
challenge disciplinary action solely on the ground
that discipline invoked for the stated offense was
inconsistent with the employer's past practice or
otherwise violated contractual provisions unrelated
to the Act. The election to proceed in the contrac-
tually created arbitration forum provides no basis,
in and of itself, for depriving an alleged discrimina-
tee of the statutorily created forum for adjudication
of unfair labor practice charges. The Chairman
would compel such a grievant to forfeit the right
to a Board disposition where, as here, an arbitrator
has found only that the employer's action was con-
sistent with its past practice, but has not addressed
the issue of whether the real motivation for the dis-
cipline was to retaliate against protected union or
other concerted activity. In a case where such an
alleged action could, if litigated, be proved valid,
deferral to the arbitration award on the procedural
basis urged by the Chairman would make a mock-
ery of the critical Spielberg requirement that an ar-
bitration award not be "clearly repugnant to the
purposes and policies of the Act," if it is to be de-
Maxwell, 620 F.2d 3o7 (1980). In a subsequent case, NLR.B. v. General
Warehouse Corporation, 643 F2d 965 (1981), the Third Circuit distin-
guished Pincus Brothers and specifically endorsed, as a prerequisite to the
Spielberg standards, the Board's requirement that the arbitrator must have
considered and ruled on the statutory issue involved in a grievance. See
also, e.g., Hammermill Paper Cumpany v. NLR.B., 658 F.2d 155 (3d Cir.
1981); St. Luke's Memorial Hospital. Inc v. N.LR.B., 623 F.2d 1173,
1178-79 (7th Cir. 1980); V.LR.B v. Davol, Inc., 597 F.2d 782, 786 (Ist
Cir. 1979): Bloom v. N. L.RB., 603 F.2d 1015, 1020 (D.C. Cir. 1979); Ste-
phenson v. N.L R.B., 550 F.2d 535 (9th Cir. 1977); The John Klann
Moving and Trucking Company v .. LR.B, 411 F.2d 261, 263 (6th Cir.
1969), cert. denied 396 U.S. 833; and Illinois Ruan Transport Corporation
v. N.L.R.B., 404 F.2d 274. 280 (8th Cir. 1968)
'213 NLRB 758 (1974).
' 247 NLRB at 146 147
137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferred. Such a peremptory analysis of the repug-
nancy issue demonstrates that it is the Chairman,
not the majority, that endorses a radical departure
from Spielberg.
The Chairman also criticizes Suburban Motor
Freight for lacking "clarity" and for creating the
problem of "how thoroughly the statutory issue
has to be presented." This problem, to the extent it
exists, will be no greater in the context of arbitra-
tion proceedings than when presented in the con-
text of summary judgment proceedings, motions
for reconsideration, or unfair labor practice pro-
ceedings relevant to conduct not specifically al-
leged as unlawful in a complaint. In any event, the
Chairman's solution to the problem subverts the
Act by requiring, rather than merely permitting, si-
multaneous litigation of all issues before an arbitra-
tor. Because parties may be justifiably unwilling to
try the statutory question before private tribunals
neither charged with nor experienced in interpret-
ing the Act, the single-forum litigation requirement
might actually discourage resort to contractual
grievance and arbitration proceedings. This result
would fly in the face of the Board's statutory man-
date to promote the private resolution of collec-
tive-bargaining disputes.
The Chairman further asserts that, absent evi-
dence to the contrary, the Board should assume
that arbitrators have considered the unfair labor
practice issues presented to them.6 Here, of course,
we have found that the statutory issue was not
even presented. In any event, we decline the invita-
tion to engage in unsupported speculation concern-
ing the substance of arbitration proceedings. The
gravity of the Board's statutory obligation to pro-
tect specified rights of employees, employers, and
labor organizations justifies requiring the party
seeking deferral to prove that the statutory issue
has been litigated. 7
Finally, we reject Member Hunter's view that
Suburban Motor Freight's requirements are satisfied
whenever the contractual and unfair labor practice
issues are factually parallel and the arbitrator was
presented generally with the facts relevant to re-
solving the unfair labor practice issue. Merely con-
sidering the relevant facts does not necessarily lead
to consideration of the statutory issue. Here, for in-
stance, the contractual issue is whether Bailey was
discharged for just cause, while the statutory issue
I The Chairman does not explain why he finds it necessary to make
this assumption, and why he goes to such great lengths here to find that
the arbitrator actually considered and ruled upon the unfair labor prac-
tice issue. Since he has clearly stated his rejection of Suburban Motor
Freight's requirement that the arbitrator consider the unfair labor practice
issue, he presumably would defer even if it were affirmatively established
to his satisfaction that the arbitrator did not consider that issue.
I Suburban Motor Freight. supra; Yourga Trucking, Inc.. 197 NLRB 928
(1972).
is whether Bailey's letter constituted protected con-
certed activity or unprotected disparagement. Al-
though a single set of facts is involved, the differ-
ence in the legal issues is most vividly illustrated
by the arbitrator's statement that Bailey would
have to "prove [the] validity" of her charges or
"suffer the penalty of dismissal." As discussed
infra, the Board does not determine the protected
character of a statement according to whether it is
true or false. In view of the contract issue defined
by the arbitrator, the arbitrator's recognition that
the Board's complaint was not before him, and the
undisputed fact that Bailey made no statutory argu-
ments at the arbitration proceeding, we cannot
agree with Member Hunter that the unfair labor
practice issue was presented to and considered by
the arbitrator.8
2. The Administrative Law Judge also found
that the labor dispute was restricted to the employ-
ees' dissatisfaction with the manner in which they
were supervised by Corino, and he concluded that
Bailey's letter was "just barely" within the ambit of
the dispute. We agree with the General Counsel's
exceptions on this issue, and we find that the labor
dispute embraced a broader range of issues and that
Bailey's letter was closely connected with those
issues.
As noted above, Bailey, Giles, and other employ-
ees raised several problems with Corino soon after
Respondent began its operations at Brookhaven.
They complained that, unlike Brookhaven's man-
agement, Respondent was supplying them with
weak cleaning solutions, and that consequently
they had to rub harder to clean the sinks, toilet
bowls, and bathtubs. The maids also objected to
Respondent's requirement that they use soft bristle
brushes to clean enamel surfaces, since Brookhaven
had formerly supplied them with hard bristle
brushes which had required less effort. Additional-
ly, as found by the Administrative Law Judge, in
May 1980 Corino informed the maids that they
would subsequently be required to perform some of
the porters' duties. In view of the foregoing, we
see no reason to limit the focus of the labor dispute
to, the issue of Corino's supervision, and we find
that there was an ongoing dispute encompassing a
variety of issues involving the employees' working
conditions.
We further find that Bailey's letter was directly
related to the labor dispute, since it specifically in-
" We reject Member Hunter's hyperbolic claim that the Board requires
the unfair labor practice issue "must be litigated and decided in exactly
the same manner as it would be before this Agency." We have found
here that the statutory issue was not litigated at all. Other than in Spiel-
berg itself, the Board has imposed no special rules concerning the manner
in which such an issue can be litigated in arbitration proceedings.
138
PROFESSIONAL PORTER & WINDOW CLEANING CO.
dicated that Respondent had removed the cleaning
agents supplied by Brookhaven and had replaced
them with products which had proven ineffective.
When viewed in this context, the letter's assertions
that the facility is "deteriorating" and that "the
floors are not really being cleaned" are clearly re-
lated to the employees' complaints about the type
of cleaning products being utilized. Additionally,
the letter specifically raises the issue involving Re-
spondent's announcement that the maids would be
required to perform the porters' work. Contrary to
the Administrative Law Judge, therefore, we find
that Bailey's letter was closely connected to the
ongoing labor dispute.
3. The Administrative Law Judge also found
that Bailey's letter reached the level of public dis-
paragement necessary to have deprived her of the
protection of the Act. In agreement with the Gen-
eral Counsel's exceptions, we find that Bailey's
conduct was protected and that Respondent violat-
ed Section 8(a)(1) of the Act by discharging her
for that conduct.
The Board has traditionally been careful to dis-
tinguish between disparagement of an employer's
product and the airing of what may be highly sen-
sitive issues.9 We have observed that "absent a ma-
licious motive, [an employee's] right to appeal to
the public is not dependent on the sensitivity of [an
employer] to his choice of forum."' ° After a care-
ful analysis of Bailey's letter and the record as a
whole, we find no evidence of a deliberate intent
on Bailey's part to disparage Respondent's product
or to undermine its reputation.
In conjunction with the complaints about the
cleaning solution and the announced reassignment
of the porters' work, the letter sets forth several al-
legations concerning a decline in service, noting in
particular that the facility is "deteriorating," that
Respondent has "done nothing to enhance the inte-
rior of [the] facility," and that "the floors are not
really being cleaned." The letter also instructed
Rothman to "take a good long look at what [Re-
spondent] is doing to your facility." We find that
these comments are similar to those which we
found protected in Richboro, supra, where an em-
ployee distributed a letter which referred to a "de-
cline in service" and "a decrease in the quantity
and quality of service" to his employer's clients.
The Board found these statements to be clearly dis-
tinguishable from disparaging comments which are
"calculated to alienate the public's patronage as a
tactic to increase the employees' leverage in the
9 Allied Aviation Service Company of New Jersey, Inc., 248 NLRB 229
(1980).
'o Richboro Community Mental Health Council. Inc., 242 NLRB 1267,
1268 (1979).
labor dispute."'' As in Richboro, we find that the
purpose of the letter was not to injure Respondent
by impugning its operation. On the contrary, by
urging Rothman to take a "good long look" at the
facility and by stating that it was their duty to
inform him of the situation "before it is too late,"
Bailey and the other employees demonstrated that
their purpose was to encourage Rothman to
remedy the various problems they were encounter-
ing in their working conditions. Neither the letter
nor the record as a whole provides any support for
the Administrative Law Judge's finding that Bai-
ley's intent was to have Brookhaven immediately
cancel its contract with Respondent. 2 We further
find, as we did in Richboro, that, while the letter
was highly critical of Respondent's operation, its
tone cannot be described as malicious. 13
We therefore conclude that, although the letter
raised "delicate issues which Respondent would
understandably prefer to keep out of the public
eye," 14 it was not of such a character as to deprive
Bailey of the protections of the Act. Accordingly,
we find that Respondent violated Section 8(a)(l) of
the Act by discharging Margaret Bailey because of
the letter which she wrote to Brookhaven on June
23, 1980.15
THE REMEDY
Having found that Respondent interfered with,
restrained, and coerced Margaret Bailey in the ex-
ercise of her Section 7 rights by discharging her on
or about July 9, 1980, we shall order that Respond-
ent cease and desist therefrom and take certain ac-
tions intended to effectuate the policies of the Act.
We shall order Respondent to offer Margaret
Bailey immediate and full reinstatement to her
former position or, if that position no longer exists,
to a substantially equivalent position, without prej-
udice to her seniority or other rights and privileges
previously enjoyed, and to make her whole for any
" 242 NLRB at 1268, citing .VL.R.B. v. Local Union .o. 1229. Inter-
national Brotherhood of Electro'ai Workers. A.FL. [Jefferson Standard
Broadcasting Companyj, 346 U.S. 464. 476-477 (1953).
12 In finding that Bailey's purpose was to have the contract canceled,
the Administrative Law Judge relied in part on his finding that the com-
plaints contained in the letter lacked merit. It is well settled, however.
that the truth or falsitv of a communication is not matenal and is not the
test of its protected character. Tyler Business Servicer. Inc., 256 NLRB
567, 568 (1981). The Pattllerson-Sargent Company, 115 NLRB 1627, 1629
(1956)
i' Contrary to the Administrative Law Judge, we find that the letter's
tone did not exceed that of the questionnaire circulated by an employee
in American Arbitration Association. Inc., 233 NLRB 71 (1977). In that
case the Board adopted an Administrative Law Judge's finding that the
employee had ridiculed that employer and had purposely tried to embar-
rass the employer by juxtaposing its client with various animals.
i4 Allied Aviation Service Company of New Jersey, Inc.. supra at 231.
is We find it unnecessary to reach the General Counsel's contention
that the discharge also violated Sec. 8(aX3) of the Act, since the remedy
would be the same in any esent.
139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loss of earnings she may have suffered as a result
of her unlawful discharge, with backpay to be
computed in the manner set forth in F W. Wool-
worth Company, 90 NLRB 289 (1950), and with in-
terest to be computed in the manner set forth in
Florida Steel Corporation, 231 NLRB 651 (1977).16
We shall also add the affirmative requirement
that Respondent expunge from its records any ref-
erence to the unlawful discharge of Margaret
Bailey. Respondent shall also be required to pro-
vide written notice of such expunction to Margaret
Bailey, and to inform her that Respondent's unlaw-
ful conduct will not be used as a basis for future
personnel actions concerning her. See Sterling
Sugars, Inc., 261 NLRB 472 (1982).
CONCLUSIONS OF LAW
1. Professional Porter & Window Cleaning Co.,
Division of Propoco, Inc., is an employer engaged
in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 144, Hotel, Hospital, Nursing Home,
Allied Health Services Union, Service Employees
International Union, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
3. By discharging employee Margaret Bailey be-
cause of her protected concerted activities, Re-
spondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Professional Porter & Window Cleaning Co., Divi-
sion of Propoco, Inc., Lynbrook, New York, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because of their pro-
tected concerted activities.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
6 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
(a) Offer Margaret Bailey immediate and full re-
instatement to her former position or, if that posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to her seniority or
other rights and privileges previously enjoyed, and
make her whole for any loss of earnings she may
have suffered as a result of her unlawful discharge,
as provided in the section of this Decision entitled
"The Remedy."
(b) Expunge from its files any reference to the
unlawful discharge of Margaret Bailey, and notify
her, in writing, that this has been done and that
evidence of the unlawful discharge will not be used
as a basis for future personnel actions concerning
her.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Lynbrook, New York, facility,
and, with Brookhaven's consent, at the Brookha-
ven Beach Health Related Facility, copies of the
attached notice marked "Appendix." 17 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 29, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 29,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
CHAIRMAN VAN DE WATER, dissenting:
I agree with the Administrative Law Judge that
this case should be deferred to the arbitrator's
award upholding the discharge of Margaret Bailey
and that, accordingly, the complaint should be dis-
missed in its entirety.
Employee Bailey worked as a maid for Respond-
ent, which performed cleaning and maintenance
services for Brookhaven nursing home. In June
1980, Bailey prepared and signed a letter to Brook-
17 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
140
PROFESSIONAL PORTER & WINDOW CLEANING CO.
haven critical of Respondent's cleaning services.
The letter, which is fully set out in the majority's
decision, stated in part that "this facility is deterio-
rating" and that Respondent "has done nothing to
enhance the interior of this facility." Bailey per-
suaded nine other employees to sign the letter and
presented it to Brookhaven's administrator. Re-
spondent was upset. Meetings were held and the
Union persuaded Respondent to forgo any disci-
plinary action if Bailey would apologize and write
a retraction letter. Bailey refused, was discharged,
and filed a grievance protesting her discharge.
Bailey's grievance was taken to arbitration where
she appeared with counsel and gave evidence.
Bailey contended before the arbitrator that she was
terminated because she would not apologize and
that the charges in her letter were true. The
Board's unfair labor practice complaint was
brought to the attention of the arbitrator. Howev-
er, as found by the arbitrator, Bailey "did not men-
tion or was it even suggested in her presentation,
that she was discharged because she had 'joined or
assisted the Union' or had 'engaged in other con-
certed activity for the purpose of collective bar-
gaining."' Additional evidence presented to the ar-
bitrator includes the facts that the contract be-
tween Brookhaven and Respondent provided for
cancellation should Respondent fail to adequately
perform its cleaning functions, that state inspectors
gave Respondent a "very good" rating, and that it
was established at meetings with the Union and the
housekeeping staff that Bailey's charges were en-
tirely unwarranted.
The arbitrator found that Respondent had just
cause to discharge Bailey. He concluded that Bai-
ley's actions were "akin to extreme insubordina-
tion" and that since Bailey made "libelous charges
against her employer . . . she must be ready to
prove their validity or suffer the penalty of dismiss-
al." The arbitrator found that Bailey "herself de-
stroyed the entire fabric of an acceptable Employ-
er-Employee ralationship." The arbitrator stated,
"[O]f course this NLRB Complaint is not before
me for determination," and "I FIND that her dis-
charge was caused not because of any Union activ-
ity or other activity protected by the NLRB, as
amended, but because of her misconduct herein
before discussed revolving around her letter of
complaint of June 23, 1980, and her refusal to re-
tract when given the opportunity on the Union's
intercession which, if taken, would have saved
Grievant her job."
I would defer because the arbitration proceeding
and award meet the standards for deferral set by
Spielberg Manufacturing Company, 112 NLRB 1080
(1955). The proceeding appears to have been fair
and regular, all parties agreed to be bound, and the
decision of the arbitrator is not clearly repugnant
to the purposes and policies of the Act. My deci-
sion to defer does not mean I necessarily agree
with the arbitrator's award; I am deferring to the
award, not adopting it. I believe that a sound defer-
ral policy requires a return to the broad deferral
standards of Spielberg and not the restrictive stand-
ards followed by the majority.
Although the Board has waxed and waned in the
application of broad deferral standards almost as
regularly as the appointment of new Board Mem-
bers, the changes are not mechanical but reflect the
difficulty of resolving inherent tensions in the
Act-the tensions between the public policy favor-
ing arbitration of labor disputes and the Board's ex-
clusive jurisdiction to find unfair labor practices,
between the purpose of the Act to foster collective
bargaining and its purpose to protect individual
Section 7 rights, and between the Board's adminis-
trative responsibility to clearly define national
labor relations policy and its adjudicatory responsi-
bility to decide cases. A broad deferral policy ad-
vances the policy favoring arbitration, fosters col-
lective bargaining, and fulfills the Board's adminis-
trative responsibilities. At the same time, deferral
under Spielberg standards preserves the other func-
tions of the Board by ensuring that statutory rights
are not abused by arbitration. The propriety of de-
ferral to resolve the tensions in the Act is discussed
in N.L.R.B. v. Pincus Brothers, Inc.-Maxwell, 620
F.2d 367 (3d Cir. 1980),18 especially in Judge
Garth's concurrence. Deferral pursuant to Spielberg
is a reasonable exercise of the Board's discretion to
decline to decide the merits of a case in order to
serve the fundamental aims of the Act an]l to fur-
ther national policy.
The national policy favoring the settlement of
labor disputes through grievance arbitration was
declared by Congress in Section 203 (d) of the
LMRA which states:
Final adjustment by a method agreed upon
by the parties is hereby declared to be the de-
sirable method for settlement of grievance dis-
putes arising over the application or interpreta-
tion of an existing collective-bargaining agree-
ment.
Affirmation of this policy was given by the Su-
preme Court in the Steelworkers Trilogy.19 In
is The court held that the Board abused its discretion in declining to
defer and denied enforcement of the Board's decisions, 237 NLRB 1063
(1978) and 241 NLRB 805 (1979).
19 United Steelworkers of America v. American Manufacturing Co., 363
U.S. 564 (1960); Uniled Sieelworkers of Arnerica v. Warrior d Gulf vaviga-
tion Co., 363 U.S 574 (1960): United Steelworkers of America v. Enterprise
Wheei & Car Corp.. 363 1U S 593 (1960)
141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Manufacturing, at 567, the Court stated,
"Arbitration is a stabilizing influence only as it
serves as a vehicle for handling any and all dis-
putes that arise under the agreement." In Warrior &
Gulf, at 578, the Court stated, "A major factor in
achieving industrial peace is the inclusion of a pro-
vision for arbitration of grievances in the collective
bargaining agreement," and, at 581, "The grievance
procedure is, in other words, a part of the continu-
ous collective bargaining process." And in Enter-
prise Wheel & Car, at 596, the Court stated, "The
refusal of courts to review the merits of an arbitra-
tion award is the proper approach to arbitration
under collective bargaining agreements." In subse-
quent cases the Court has continued to stress the
strong national policy favoring arbitration of labor
disputes. For example, in Boys Markets, Inc. v.
Retail Clerks Union, Local 770, 398 U.S. 235, 251
(1970), the Court endorsed arbitration and other
"administrative techniques for the peaceful resolu-
tion of industrial disputes," and in Gateway Coal
Co. v. United Mine Workers of America, et. al., 414
U.S. 368, 377 (1974), the Court stated, "The federal
policy favoring arbitration of labor disputes is
firmly grounded in congressional command," and
found that policy applicable to labor disputes
touching the safety of employees. Although these
cases do not apply directly to the Board and there
is no statutory or Court mandate for the Board to
adopt a broad deferral policy, these cases are
"healthy hints" 20 that the Board should follow
such a policy.
In International Harvester Company (Indianapolis
Works), 138 NLRB 923 (1962), affd. sub nom.
Ramsey v. N.L.R.B., 327 F.2d 784 (7th Cir. 1964),
cert. denied 377 U.S. 1003, the Board specifically
found that the policies announced by the Court in
the Steelworkers Trilogy apply to Spielberg defer-
ral. The Board in deferring stated, at 926:
The Act, as has repeatedly been stated, is
primarily designed to promote industrial peace
and stability by encouraging the practice and
procedure of collective bargaining. Experience
has demonstrated that collective-bargaining
agreements that provide for final and binding
arbitration of grievance and disputes arising
thereunder, "as a substitute for industrial
strife," contribute significantly to the attain-
ment of this statutory objective.
In Carey v. Westinghouse Electric Corp., 375 U.S.
261, 271 (1964), the Supreme Court quoted with
obvious approval the above statement of the
Board. By adopting a broadly based deferral
s0 N.LR.B. v. The Horn & Hardart Company, 439 F.2d 674, 679 (2d
Cir. 1971).
policy, the Board endorses the national policy fa-
voring arbitration and also achieves the primary
objective of the Act-to encourage collective bar-
gaining. On the other hand, as stated in Associated
Press v. N.L.R.B., 492 F.2d 662, 667 (D.C. Cir.
1974),2 1 "We think it clear that submission to
grievance and arbitration proceedings of disputes
which might involve unfair labor practices would
be substantially discouraged if the disputants
thought the Board would give de novo considera-
tion to the issue which the arbitrator might re-
solve."
A return to broad deferral standards would not
be an abdication of the Board's responsibility to
prevent unfair labor practices; the Spielberg criteria
ensure otherwise. As found by the court in Associ-
ated Press, supra at 667, "The Board does not abdi-
cate its responsibilities to implement the National
Labor Relations Act by respecting peaceful resolu-
tion of disputes through voluntarily agreed upon
administrative techniques as long as it is assured
that those techniques are procedurally fair and that
the resolution is not clearly inconsistent with or re-
pugnant to the statute." The reason is that Spielberg
resolves the inherent tensions in the Act by recog-
nizing that the national policy favoring arbitration
requires the Board to emphasize the major purpose
of the Act to achieve industrial peace through col-
lective bargaining. As stated by Judge Rosenn in
the lead opinion in Pincus Brothers, 620 F.2d at 374,
"The national policy in favor of labor arbitration
recognizes that the societal rewards of arbitration
outweigh a need for uniformity of result or a cor-
rect resolution of the dispute in every case." Defer-
ral restricts multiple litigation of the same set of
facts in different forums and prevents parties from
freely ignoring their agreement to submit all their
disputes to their grievance and arbitration proce-
dures. Deferral recognizes that the parties have ac-
cepted the risk that an arbitrator might decide a
particular set of facts differently than would the
Board. However, this risk is one which the parties
have voluntarily assumed through collective bar-
gaining. 2 2 As further stated by Judge Rosenn in
21 The court upheld the Board's decision to defer, 199 NLRB 1110
(1972).
22 Even though deferral arises only where the issues before the arbitra-
tor also involve unfair labor practice issues, this risk is not always borne
by the grievant. A refusal by the General Counsel to issue an unfair labor
practice complaint on union-filed charges does not prohibit a court from
ordering arbitration of the same matter or from enforcing an arbitration
award upholding the union's charges. See International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO v. General Electric Company,
407 F.2d 253 (2d Cir. 1968), cert. denied 395 U.S. 904 (1969); Edna H.
Pagel, Inc., a California Corporation doing business as Sweetener Products
Company, et al. v. Teamsters Local Union 595, chartered by the Internation-
al Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of
America, 667 F.2d 1275 (9th Cir. 1982).
142
PROFESSIONAL PORTER & WINDOW CLEANING CO.
Pincus Brothers, supra, "The parties are not injured
by deference to arbitration because it is the parties
themselves who have selected and agreed to be
bound by the arbitration process." Deferral by the
Board in any particular case is a determination that
the broad policies of the Act should take prece-
dence over a decision by the Board on the merits
of the case. In this sense, deferral is an assertion of
jurisdiction by the Board in which it recognizes
both the very real role arbitration plays in the bar-
gaining process and the parties' agreement to
submit their dispute to the arbitral forum.
It is these policy considerations which lead me
to conclude that a broad deferral policy is neces-
sary if the Board is properly to fulfill its statutory
mandate. Once the Board has decided to exercise
its discretion to defer, the Board must clearly
define its criteria for deferral so employers, unions,
and employees know what to expect and so the
Regional Offices know when to issue unfair labor
practice complaints. I believe that the Spielberg
standards for deferral are sufficiently broad and, if
narrowly defined, are sufficiently clear. The Spiel-
berg procedural standards, that the parties have
agreed to be bound and that the proceedings
appear to be fair, have not been difficult to apply;
essentially they mean that the proceedings have not
been arbitrary and capricious. The substantive
standard, that the result is not clearly repugnant to
the purposes and policies of the Act, has proved
difficult to apply. However, the difficulty is due
not to the lack of clarity of the standard but to the
failure of the Board to follow the broad deferral
policy of that standard. In Liquor Salesmen's Union
Local 2 of the State of New York, Distillery, Rectify-
ing, Wine & Allied Workers' International Union,
AFL-CIO [Chamber Industries, Inc., et al.] v.
N.LR.B., 664 F.2d 318, 323-324 (2d Cir. 1981),23
the court stated:
Over the years, the number and nature of
the criteria applied to deference decisions have
changed. The concept of "clearly repugnant,"
for example, has proved elusive, with the
Board and the courts viewing it sometimes as
a test of whether the arbitrator's award was
"palpably wrong," see, e.g., International Har-
vester Co., 138 N.L.R.B. 923, 929 (1962), enfd
sub nom. Ramsey v. N.LR.B., 327 F.2d 784
(7th Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct.
1938, 12 L.Ed.2d 1052 (1964); or not "consist-
ent with Board law," see, e.g., Kansas City
Star, Inc., 236 N.L.R.B. 866, 869 (1978)
(Member Truesdale, concurring); or "arguably
" The court held that the Board abused its discretion in declining to
defer and denied enforcement of the Board's decision, 250 NLRB 293
(1980).
. . .not inconsistent with Board policy," see
NLRB v. Pincus Brothers, Inc.-Maxwell, 620
F.2d 367 (3d Cir. 1980).
The term "clearly repugnant" has by ordinary
definition a restrictive meaning and should, in my
opinion, be restrictively defined and broadly ap-
plied. The key, I believe, is to be found in the
standard courts are required to follow in deciding
whether to order arbitration. In the Steelworkers
Trilogy case of Warrior & Gulf, 363 U.S. at 582-
583, the Supreme Court held, "An order to arbi-
trate the particular grievance should not be denied
unless it may be said with positive assurance that
the arbitration clause is not susceptible of an inter-
pretation that covers the asserted dispute. Doubts
should be resolved in favor of coverage." This is
the standard which I would apply, by the process
of extrapolation, in defining "clearly repugnant." If
an arbitration award is susceptible to an interpreta-
tion that is not inconsistent with the fundamental
purposes or the specific provisions of the Act, the
award is not clearly repugnant to the purposes and
policies of the Act. This is the standard applied by
the D.C. Circuit in Associated Press, 492 F.2d 662,
and by the Ninth Circuit in Douglas Aircraft Com-
pany, a component of McDonnell Douglas Corpora-
tion v. N.LR.B., 609 F.2d 352, 354-355 (1979),24
holding, "If the reasoning behind an award is sus-
ceptible of two interpretations, one permissible and
one impermissible, it is simply not true that the
award was 'clearly repugnant' to the Act." In
Pincus Brothers, 620 F.2d at 374, the Third Circuit
agreed, ruling, "[W]e conclude that it is an abuse
of discretion for the Board to refuse to defer to an
arbitration award where the findings of the arbitra-
tor may arguably be characterized as not inconsist-
ent with Board policy." This is the "clearly repug-
nant" standard of Spielberg which I would apply.
In Suburban Motor Freight, Inc., 247 NLRB 146
(1980), the Board majority adopted the additional
deferral standards that the statutory issue involved
in the case must have been presented to and con-
sidered by the arbitrator. In my opinion, Suburban
Motor Freight departs from sound deferral policy.
The arbitral forum is the one selected through col-
lective bargaining by the parties to resolve their
disputes and once that forum has been invoked the
grievant should be required to raise any statutory
issues before the arbitrator or be precluded from
subsequently raising them before the Board. The
Suburban Motor Freight standards open the way for
relitigation of issues resolved by the arbitrator
a4 The court held that the Board abused its discretion in declining to
defer and denied enforcement of the Board's decision. 234 NLRB 578
(1978).
143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely because the General Counsel argues or the
Board discovers in hindsight some different facts,
arguments, or legal theories. The standards lead to
the Board's deciding whether or not to adopt the
arbitrator's award. This, I submit, is not deferral
and contravenes the public policy favoring griev-
ance arbitration.
Once a statutory issue has been raised in an arbi-
tral proceeding, the arbitrator must effectively re-
solve the issue just as the arbitrator must resolve all
the issues before him. However, a written opinion,
although desirable, is not required. See Bloom v.
N.LR.B., 603 F.2d 1015, 1020 (D.C. Cir. 1979).25
Absent evidence to the contrary, the Board should
be willing to assume that arbitrators have consid-
ered the issues prescnted to them, including any
unfair labor practice issues. "[l]t should not be as-
sumed that an arbitrator has snubbed the Act any
more than that he has exceeded his authority."
Douglas Aircraft Company, 609 F.2d at 355.
Even were I to agree in principle with Suburban
Motor Freight, I would not add the additional
standards because they lack clarity and are, there-
fore, administratively unsound. The Suburban
Motor Freight standards do not resolve but create
the problems of how thoroughly the statutory issue
has to be presented and how completely the arbi-
trator has to consider the issue. The majority's ap-
plication of Suburban Motor Freight in the instant
proceeding illustrates the extent of these problems.
Although the statutory issue was not specifically
litigated and was not argued before the arbitrator,
the issue was raised when the unfair labor practice
complaint before the Board was introduced. 2 6 As
the statutory issue was raised, as the issue involved
an evidentiary question, and as the facts were fully
presented, I would find that the statutory issue was
presented to the arbitrator. In addition, I would
find that the arbitrator considered and ruled on the
unfair labor practice issue. Although the arbitrator
found that the unfair labor practice complaint was
not before him for determination, which strictly
considered it could not be because the Board has
exclusive jurisdiction over unfair labor practices,
he specifically found that Bailey was not dis-
charged because of activity protected by the Act.
What more the majority would require I do not
know. What is important is that Suburban Motor
Freight, especially as applied by the majority, is ad-
ministratively unsound and reflects an unsound de-
ferral policy.
'5 The court upheld the Board's decision to defer, United Parcel Serv-
ice. Inc., 232 NLRB 1114 (1977).
g6 Introducing the complaint for a limited purpose is akin to telling
someone, "Don't think about a bear." The fact is that the complaint was
before the arbitrator and the arbitrator would be remiss if he failed to
consider it.
I would find that the arbitration award meets the
Spielberg standards for deferral. There is no conten-
tion before the Board of procedural irregularity,2 7
and in my opinion the award is not clearly repug-
nant to the purposes and policies of the Act. The
arbitrator found that Bailey's drafting a letter criti-
cal of Respondent and giving the letter to a client
of Respondent was "akin to supreme insubordina-
tion" and that she failed to prove the validity of
the "libelous charges" in the letter. This award is
susceptible to an interpretation that Bailey's actions
amounted to disparagement and that any concerted
activity was removed from the protection of the
Act. Although the arbitrator did not use the term
"disparagement," it is not unreasonable to interpret
his award as effectively so finding. The Adminis-
trative Law Judge explains at length why this is so.
The employees' real complaint was about their su-
pervisor and was not set out in the letter, the letter
was highly critical of the Respondent's ability to
perform its cleaning function, and the letter was
given to a client of Respondent. For these reasons,
the arbitration award is susceptible to a permissible
interpretation, especially as the arbitrator found
that the statements in the letter were not true and
that Respondent's cleaning contract was revocable
for poor performance. Accordingly, deferral to the
arbitration award is appropriate.
In many respects this case is similar to Pincus
Brothers, Inc.-Maxwell, 237 NLRB 1063 and 241
NLRB 805. In that case an employee prepared and
distributed to employees a leaflet which called the
semiannual plant meeting a "circus," referred to
"our already stinking pay checks," stated, "The
way we have to work ain't no different from any
other stinking garment shop in the city," and re-
ferred to the "lousy style of clothes" Pincus was
making. The arbitrator held that the employee was
discharged for cause because she had written a
handbill which "intentionally misrepresented or
distorted facts related to certain employment prac-
tices and business policies and product status of the
Company in a denigrating, disparaging fashion so
as to constitute detrimental unprotected disloyal-
ty." The Board found that it would be repugnant
to the Act to defer, noting that the handbill "was
not distributed to the public but was aimed only at
her fellow employees." The Third Circuit found
that the Board abused its discretion in not defer-
ring. N.L.R.B. v. Pincus Brothers, Inc.-Maxwell, 620
F.2d 367. Specifically, the court was of the opinion
that the employee's activities were arguably unpro-
tected because, among other reasons, the leaflet
27 The Administrative Law Judge categorically rejected the suggestion
that Bailey was not given a fair opportunity to testify at the arbitration
proceeding.
144
PROFESSIONAL PORTER & WINDOW CLEANING CO.
could at least arguably be labeled as "defamatory
or insulting material known to be false" and thus
characterized as unprotected and that the employ-
ee's conduct, in view of language of the leaflet and
the arbitrator's view of the effect of that language,
"could arguably be characterized as unprotected
disloyalty." I believe the court's decision is clearly
applicable to the instant case. Bailey's conduct
could arguably be characterized as unprotected
based on the arbitrator's finding that it was insub-
ordinate, libelous, and destructive of the employer-
employee relationship and that the letter was
shown not only to employees but to a client of Re-
spondent.
For the foregoing reasons I would defer to the
arbitration award herein and dismiss the complaint
in its entirety. In my opinion, the majority's deci-
sion not to defer is a rejection of Spielberg and the
national policy favoring arbitration.
MEMBER HUNTER, dissenting:
Once again, my colleagues in the majority have
substituted their judgment for that of an arbitrator,
reaching out not only to overturn the arbitrator's
award but also to reverse the Administrative Law
Judge, who recommended deferral. I dissent.
The facts have been set out both in the majority
opinion and in Chairman Van de Water's dissent,
and I will not recount them again. Relying on Sub-
urban Motor Freight, Inc., 28 the majority finds de-
ferral inappropriate because "the unfair labor prac-
tice issue before us was neither presented to nor
considered by the arbitrator." While I am not pre-
pared to reject Suburban Motor Freight out-of-hand,
it seems that the requirement that the arbitrator
consider the unfair labor practice becomes more
complex with each decision. 29 From the present
decision, it appears that, in order for the parties to
have any degree of certainty that the Board will
defer, the unfair labor practice must be litigated
and decided in exactly the same manner as it
would be before this Agency. That is, the arbitra-
tor must make the exact same factual determina-
tions and apply Board precedent in a written dis-
cussion which resolves the unfair labor practice
precisely as the Board would. Clearly this ap-
proach extends the Raytheon requirement beyond
any reasonable bounds, and in effect mandates turn-
ing arbitrators into de facto administrative law
judges. I do not believe that such an elaborate
standard is consistent with the strong national
policy which favors voluntary arbitration of dis-
putes. That policy is ably explained in the Chair-
man's dissent, and I agree wholeheartedly with his
28 247 NLRB 146 (1980).
t9 This requirement is not new; it has existed since the Raytheon deci-
sion in 1963. Raytheon Company, 140 NLRB 883.
analysis of the importance of arbitration to the
overall scheme of Federal labor law.
As noted earlier, I do not approve the majority's
broad expansion of the Raytheon requirement. The
standard I would apply is not necessarily new, but
it is one which I believe comports with the ap-
proach used previously by the Board3 0 and by sev-
eral of the reviewing courts of appeals. 3 ' I would
find that the arbitrator had adequately considered
the unfair labor practice if (1) the contractual issue
is factually parallel to the unfair labor practice
issue, and (2) it appears from the record that the
arbitrator was presented generally with the facts
relevant to resolving the unfair labor practice.
However, I would not require the arbitrator to
pass explicitly on the unfair labor practice.3 2 Such a
requirement is, at best, anomalous, because arbitra-
tors do not have the authority to decide unfair
labor practices, and, at worst, a formalistic mecha-
nism to avoid deferral because of the absence of
"magic words."
In the instant case, I join the Chairman in defer-
ring because the arbitrator's award here meets the
standard set out above. Thus, the contractual issue
of whether Respondent had "just cause" to dis-
charge Bailey for her disparaging letter to Brook-
haven is factually parallel to the unfair labor prac-
tice issue of whether Respondent violated Section
8(a)(1) of the Act by discharging Bailey for send-
ing the letter to the contractor. And it is clear from
the record that the arbitrator considered the facts
3o The Board has generally not required arbitrators to pass explicitly
on the unfair labor practice. Raytheon Company. supra (deferral inappro-
priate where arbitrator had not considered evidence relevant to the unfair
labor practice); Ihe Kansas City Star Company, 236 NLRB 866 (1978)
(deferral appropriate where arbitrator made necessary factual findings
and implicitly resolved the unfair labor practice); Atlantic Steel Company,
245 NLRB 814 (1979) (deferral appropriate where arbitrator made com-
plete factual findings v hich were parallel to unfair labor practice). In
fact, my colleagues' interpretation here of Suburban Motor Freight-that
the arbitrator must apply Board standards and make specific findings
about the unfair labor practice-does not even comport with the interpre-
tation of at least one of the members of the majority in that decision.
Thus, in Bay Shipbuilding Corporation, 251 NLRB 809, fn. 3 (1980), then
Member Truesdale stated that "Suburban Motor Freight does not require
that an arbitrator pass on the unfair labor practice explicitly." My agree-
ment with Suburban Motor Freight is limited to its holding that deferral is
unwarranted where the arbitrator is not presented with the evidence rele-
vant to the unfair labor practice.
S i See, e.g., Liquor Salesmen s Union Local 2 of the State of New York.
Dirtillery. Rectifying. Wine A Allied Workers' International Union, AFL-
CIO (Charmer lndustries Inc., et al] v. N.LR.B., 664 F.2d 318, 325 (2d
Cir. 1981) (deferral appropriate "[b]ecause both the contractual and statu-
tory issues rest on the same factual determinations"). Utnder these circum-
stances. to insist here that the arbitrator announce that his resolution of
the contractual dispute is intended as a resolution of the statutory issue as
well is to impose a purely formalistic requirement. Bloom v. NLR.B.,
603 F.2d 1015 (D.C. Cir. 1979) (deferral appropriate where the evidence
presented to the panel was basically the same evidence later presented to
the Board)
a" The legal standards under the contract and Board law normally are
not precisely the same But, in my view. consideration of the differing
standards is, or should be, subsumed in the question of whether the arbi-
trator's decision is "clearly repugnani" to the Act.
145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relevant to the unfair labor practice in deciding
that the discharge was for cause. In fact, he even
made a finding that Bailey was not discharged for
union or other protected activity. 33 I would there-
fore find that the arbitrator satisfied the require-
ment that he consider the unfair labor practice.
The only remaining question is whether the arbi-
trator's decision is "clearly repugnant" to the Act.
The Administrative Law Judge concluded, after
analyzing relevant Board precedent, that it was
not. The majority, while claiming that it is not nec-
essary to reach this question, spends considerable
effort reversing the Administrative Law Judge and
finding Bailey's letter to be protected activity for
which she could not lawfully be discharged. On
the issue of whether the arbitrator's award was
clearly repugnant, I would adopt the findings of
the Administrative Law Judge since I would not
require an arbitrator's award to be consistent with
the bulk of Board precedent. Instead, I would defer
unless the award is "palpably wrong";3 4 i.e., it flys
in the face of well-established and clear Board doc-
trine. 3 5
I have not, given the posture of this case, ana-
lyzed my colleagues' decision on the merits in
detail. Suffice it to say that the Administrative Law
Judge found that Bailey's communication constitut-
ed a public disparagement and that the purpose of
her letter was to persuade Brookhaven to cancel its
contract with Respondent. The majority reverses
the finding of public disparagement on the grounds
that statements in the letter to the effect that the
facility is "deteriqrating" and "the floors are not
really being cleaned" were similar to comments
"which [the Board] found protected in Richboro,
supra."3 6 In comparing statements, however, the
majority omitted some of Bailey's more disparaging
remarks; for example, her reference to "all the dirt
and germs" at Brookhaven and her suggestion that
33 The arbitrator here did more than I believe is necessary. He made a
specific finding that Bailey was not discharged for union or other pro-
tected activity. The majority nevertheless rejects this finding as "gratu-
itous," even though the arbitrator reached this conclusion based on all
the evidence before him, including the evidence of her alleged protected
activity. Moreover, they suggest that an arbitrator must make a specific
finding on disparagement or disloyalty and that this arbitrator's findings
that Bailey's letter was "libelous" and her conduct "akin to extreme in-
subordination" were irrelevant to a determination of whether Bailey's ac-
tivities were not protected by the Act. It is hard to imagine any arbitra-
tor's decision which upholds the discharge as being satisfactory to the
majority here. Indeed. it is clear from their reversal of the Administrative
Law Judge that, at bottom, they simply disagree with the result.
34 International Harvester Company (Indianapolis Works), 138 NLRB
923, 929 (1962), affd. sub nom. Ramsey v N.L.R.B., 327 F.2d 784 (7th
Cir. 1964), cert. denied 377 U.S. 1003, quoted in Member Penello's dis-
senting opinion in Douglas Aircraft Company. Component of McDonnell
Douglas Corporation, 234 NLRB 578. 581 (1978), enforcement denied 609
F.2d 352 (9th Cir. 1979).
3a I do not pass on the question of whether an arbitratior's award must
be in writing, since here the arbitrator issued a full decision.
'6 Richboro Community Mental Health Council. Inc., 242 NLRB 1267
(1979).
Respondent was merely making the floors look
good without really getting them clean. These
comments, as found by the Administrative Law
Judge, were more serious than those found in Rich-
boro. The assertion that dirt and germs were
present is particularly damaging, since Brookhaven
is a nursing home. Moreover, the letter, when read
in its entirety, suggests that Respondent, either de-
liberately or negligently, had deceived Brookhaven
by giving the appearance of cleaning the facility
without doing so. I would conclude that the letter,
taken as a whole, constitutes a public disparage-
ment. I further agree with the Administrative Law
Judge that the kind of language used, the lack of
validity of the complaints, and the "intentional
omission of any reference to the maids' dispute
with [their supervisor]" support the inference that
the purpose of the letter was not merely to air em-
ployee grievances to a third party, but rather to
gain leverage with Respondent by convincing
Brookhaven to consider canceling its contract.
This case is thus analogous to the Supreme
Court's decision in Jefferson Standard Broadcasting
Company,3 7 a case relied on by the Administrative
Law Judge in recommending deferral. In Jefferson
Standard, the Court held that several employees
were lawfully discharged for disloyalty when they
distributed handbills during a labor dispute which
made a "sharp, public, disparaging attack upon the
quality of the company's product and its business
policies, in a manner reasonably calculated to harm
the company's reputation and reduce its
income."38 The Court further noted that the dis-
paragement "was not part of an appeal for support
in the pending [labor] dispute."3 9 The Jefferson
Standard decision is still the guiding precedent in
the area of discharge for disloyalty, and the major-
ity's attempt to distinguish it from the instant case
is unpersuasive. Thus, as discussed above, the ma-
jority has ignored the plain language of the letter
and instead has proffered the bald conclusion that
the letter is not a "sharp, public, disparaging
attack," but rather a simple "airing of ... highly
sensitive isues." The majority also finds that the
letter does not omit reference to the real cause of
the dispute since, contrary to the Administrative
Law Judge, the majority finds that the maids were
also concerned about the quality of the cleaning
supplies, a subject discussed in the letter. I have al-
ready stated that I would adopt the findings of the
xa N.L.R.B. v. Local Union No. 1229. International Brotherhood of Elec-
trical Workers [Jefferson Standard Broadcasting Company]. 346 U.S. 464
(1953), affg 94 NLRB 1507 (1951).
38 346 U S. at 471.
39 Id. at 477.
146
PROFESSIONAL PORTER & WINDOW CLEANING CO.
Administrative Law Judge, 4 0 in which he recog-
nized that the maids had some concern about the
cleaning supplies, but that their greater concern
was the nature of their supervision.
Furthermore, even if the majority were correct
in its conclusion that the letter was closely con-
nected to the dispute, deferral would still be war-
ranted here. As the Supreme Court stated in Jeffer-
son Standard:
Even if the attack were to be treated, as the
Board has not treated it, as a concerted activi-
ty wholly or partly within the scope of those
mentioned in §7, the means used by the techni-
cians . . . have deprived [them] of the protec-
tion of that section, when read in the light and
context of the purpose of the Act. [346 U.S. at
477-478.]
Thus, it appears that the majority is reaching out in
order to find a violation. This result is particularly
inappropriate in the Spielberg context4 I because it
completely undermines that part of the Spielberg
doctrine which states that the Board will defer
even where it would not reach the same result if it
considered the case de novo. In my view, the deci-
sions of the arbitrator and the Administrative Law
Judge are more consistent with the Jefferson Stand-
ard decision than is the result reached by the ma-
jority today. For all of the reasons stated above, I
therefore dissent.
40 Acceptance of his findings seems particularly appropriate since they
were based largely on his crediting of the witnesses' testimony. For ex-
ample, his finding that the purpose of the letter was to protest supervi-
sion was based on the testimony of Giles and, indirectly. Bailey. Certain-
ly, demeanor, as well as the words used, played a part in his determina-
tion.
41 Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees because
of their protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL offer Margaret Bailey immediate
and full reinstatement to her former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to her seniority or other rights and privi-
leges previously enjoyed, and WE WILL make
her whole for any loss of earnings she may
have suffered as a result of her unlawful dis-
charge, with interest.
WE WILL expunge from our files any refer-
ence to the discharge of Margaret Bailey, and
notify her, in writing, that this has been done
and that evidence of the unlawful discharge
will not be used as a basis for future personnel
actions concerning her.
PROFESSIONAL PORTER & WINDOW
CLEANING Co., DIVISION OF PRO-
POCO, INC.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge: The
hearing in this case was held in New York, on April 2
and 3, 1981. The underlying unfair labor practice charge
was filed by Margaret Bailey on July 10, 1980. The com-
plaint was issued on August 22, 1980, by the General
Counsel against Professional Porter & Window Cleaning
Co., Division of Propoco, Inc. (herein called Respond-
ent) which filed its answer on September 2, 1980.
The issues submitted to me for decision in this case
are:
1. Whether an arbitration award requires dismissal of
the allegation by the General Counsel that Respondent
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (herein called the Act), by
having discharged its employee, Margaret Bailey, be-
cause of her activities on behalf of Local 144, Hotel,
Hospital, Nursing Home, Allied Health Services Union,
S.E.I.U., AFL-CIO (herein called the Union).
2. Whether her actions in preparing and signing a
letter, and in obtaining the signatures of some of her co-
workers thereon, were protected by Section 7 of the
Act, such that her discharge therefor constituted a viola-
tion of Section 8(a)(1) and (3) of the Act.
3. Whether Respondent lawfully discharged Bailey be-
cause she, notwithstanding the advice of her union repre-
sentative to do so, failed or refused to acknowledge by a
written apology that the contents of that letter were
clearly erroneous.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after careful consid-
eration of the briets filed by the General Counsel and by
Respondent, I make the following:
FINDINGS OF FACT
I. RESPONDENT'S OPERATIONS AND THE UNION'S
STATUS
Based upon the pleadings, I find that Respondent is an
employer within the meaning of Section 2(2) of the Act
and that it is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. I further find, also
based upon the pleadings, that the Union is a labor orga-
nization as defined in Section 2(5) of the Act.
147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Events Leading to Bailey's Discharge
There is virtually no factual issue posed in this case.
Brookhaven Beach Health Related Facility (herein
called Brookhaven) operates a nursing home in Far
Rockaway, New York. Prior to about June 1979, it had
on its own payroll a group of employees classified as
maids and porters whose jobs were to keep clean the
bathrooms, patients' rooms, hallways, and recreational
areas of the nursing home. These employees were repre-
sented by the Union.
Respondent is engaged in the business of providing
cleaning services to nursing homes and to commercial of-
fices. In June 1979, Brookhaven subcontracted to Re-
spondent the cleaning services then being done by
Brookhaven's own maids and porters, as recounted in the
preceding paragraph. Most of the maids and porters on
Brookhaven's payroll then became employees of Re-
spondent and they continued to work at the Brookhaven
facility. As the Union had a contract also with Respond-
ent, these maids and porters continued to be represented
by the Union.
An individual, Mary Ann Corino, had been employed
in the dietary department by Brookhaven. When Re-
spondent obtained its contract with Brookhaven to do
the cleaning work at its nursing home, it hired Corino to
supervise its maids and porters there. The General Coun-
sel's witnesses Margaret Bailey and Mary Giles testified
that they were employed as maids by Respondent at
Brookhaven and that they and other maids complained
to Corino in 1979 that Respondent was supplying them
with weak cleaning solutions. They testified that, as a
consequence, the maids had to rub harder to get the
sinks, toilet bowls, and bathtubs as clean as those facili-
ties were when the maids worked directly for Brookha-
ven. They stated that Brookhaven had supplied a more
effective cleaning agent. In addition, they testified that
Respondent required them to use soft bristle brushes to
clean the enamel surfaces of those facilities whereas
Brookhaven had furnished them with hard bristle
brushes to do that work. They testified that the hard
bristle brushes required them to use considerably less
effort than the soft bristle brushes did. Respondent's wit-
ness testified that the hard bristle brushes damaged the
ceramic finish on the bowls and bathtubs and that the
soft bristle brushes it furnished were equally effective in
performing the normal cleaning duties. One of the Gen-
eral Counsel's witnesses, Mary Giles, testified that the
last time, prior to the date on which Bailey circulated
the letter discussed below, that the maids complained to
Corino about having been furnished with ineffective
cleaning fluids by Respondent was in November 1979.
Respondent's assistant director of operations, Donald
O'Toole, testified that the fluids met the express germici-
dal requirements of the health law of the State of New
York and that the ammonia-brand detergent that had
been used by Brookhaven as a cleansing agent before Re-
spondent assumed the cleaning operations at Brookhaven
in mid-1979 was completely ineffective.
It appears that Respondent's supervisor, Corino, con-
ducted rigid inspections of the work performed by the
maids employed by Respondent at Brookhaven. In that
regard, Bailey testified that Corino "stood over" the
maids while they worked and that she was "always on
the floor." Bailey testified that Corino criticized the
maids as if they were little children. The General Coun-
sel's other witness, Mary Giles, testified that Corino had
complained about the way she did her work and, on one
occasion, told her that she was not doing the dusting of
window sills correctly. As a consequence of the pres-
sures they felt were attributable to Corino's way of deal-
ing with them, Bailey and Giles, together with some of
the other maids, .complained to their union steward and
also to their union representative, McQueen. It appears
that McQueen, on those occasions, talked with Corino
and, according to Bailey, Corino would, as a result, let
up the pressure for a few days and then, "it would start
over again."
In May 1980, Corino met with the maids and told
them that, as they get the same rate of pay as the porters
and as they have the same job duties as the porters under
the union contract, they would be expected to mop the
bathroom floors. The maids protested to their union rep-
resentative that the mops were too heavy for them and
that they should not be expected to do the mopping or
other heavy work done by the porters. The Union's rep-
resentative told them that the contract does not make
any distinction as to duties or pay based on whether a
housekeeping employee is male or female and that the
duties of a maid and a porter are interchangeable. Never-
theless, all witnesses agreed that the porters do the
heavy work and that the only change in the maids'
duties, relative to the time they worked for Brookhaven
directly, is that on occasion the maids remove plastic
bags containing discarded items. There is no evidence or
contention that the removal of these bags is in any way
unduly onerous for the maids to perform. The evidence
is uncontroverted that, despite the testimony as to Cor-
ino's statement to the maids in May 1980 that they
should mop the bathroom floors, the maids have never
been required to do so.
The one thread that runs throughout the relevant time
frame in this case is that the maids were upset with the
manner in which Corino supervised them. As noted
above, both of the General Counsel's witnesses, Bailey
and Giles, asserted that Corino surveyed the work of the
maids critically. On June 23, 1980, Bailey prepared and
signed the letter set out below and gave it to some of the
other maids, who also signed. Bailey said the letter was
prepared by her after- she and Giles agreed that perhaps
the letter would bring about an arrangement whereby
"there wouldn't be any hassles or anything." Giles stated
that she signed the letter "to make her job better because
if [the maids weren't] cleaning, Corino would come up-
stairs and harass [them]." Giles also testified that she
signed the June 23 letter because "it was not aimed at
anyone in particular." I infer from that testimony that
she meant simply that she signed the letter because it did
not make any direct reference to Corino. Her other testi-
mony discloses, nevertheless, that the underlying reason
why the letter was prepared and signed "was the way
Corino treated the maids."
148
PROFESSIONAL PORTER & WINDOW CLEANING CO.
On June 23, 1980, Bailey handed the letter to H. Roth-
man, the administrator of Brookhaven who had, in mid-
1979, subcontracted the housecleaning operations to Re-
spondent. That letter reads as follows:
The Housekeeping Dept. feels that it is time for
you to be made conscious of the fact that this facili-
ty is deteriorating.
The Professional Porter Service Company has
done nothing to enhance the interior of this facility.
The Professional Porter Service Company has
taken everything away from the Housekeeping
Dept. that is needed to clean the facility with. The
products that are used now have been diluted with
so much water that [they are] no good.
The Professional Porter Service Company is
making the hallways, the dining area, and the day-
room floors look good, but the floors are not really
being cleaned.
Now on top of all the dirt and the germs, Profes-
sional Porter Service Company is demanding that
the maids do the porter's work, and the porters do
the maid's work.
Mr. Rothman, this is very humiliating to the
Housekeeping Dept. and to the facility. So when
you are in the facility again, just take a good long
look at what the Professional Porter Service Com-
pany is doing to your facility.
Again, we feel that it is our duty to inform you
of the situation before it is too late.
The letter was signed by Bailey, Giles, and eight other
maids. Bailey asked Rothman to read the letter and then
to meet with the maids. Instead, Rothman, after having
read the letter, telephoned Respondent's president and
told him that he did not want to get involved in any in-
ternal dispute Respondent had with its employees and
that if Respondent could not take care of its own affairs,
he would replace Respondent with a company that can
do so. Respondent then, through its president and other
agents, including Corino, and by using the offices of the
Union, sought without success to have Bailey apologize
in writing for the letter. When Bailey declined to do so,
she was discharged.
B. The Arbitration Award
Bailey filed a grievance with the Union protesting her
discharge. It went to hearing before an arbitrator. The
Union's attorney in that proceeding testified in the in-
stant case that he did not contend and thus offered no
evidence in the course of the arbitration hearing that Bai-
ley's discharge was based upon her activities on behalf of
the Union.' It appears that his sole contention before the
I During the hearing in the instant case, Bailey testified that she was
not able to testify fully at the arbitration hearing to the events surround-
ing her discharge because the Union's attorney had instructed her not to
say anything against the Union The Union's attorney at that proceeding
was notified of that contention and came promptly to the hearing room
where he recounted the nature of the guidance he had given Bailey in
preparing her for the arbitration proceedings. His testimony was most
clear and forthright. It establishes that Bailey was given appropriate
guidelines respecting the issue being considered by the arbitrator. The
General Counsel does not contend and there is no evidence that Bailey
arbitrator was that Respondent did not have just cause to
have discharged Bailey, particularly as the other maids,
who signed the June 23 letter, were not disciplined. He
acknowledged that he offered in evidence at the arbitra-
tion proceeding a copy of the complaint issued by the
General Counsel in the instant case. He testified before
me that he had introduced that complaint before the ar-
bitrator solely to offset any inference that might be
drawn by the arbitrator from the fact that Respondent
had given to the arbitrator a copy of a determination by
the Division of Unemployment Compensation of the
State of New York that Bailey's discharge was for cause.
The arbitrator issued an award on December 23, 1980,
finding that the Respondent had just cause to terminate
Bailey as, in his view, Bailey's conduct in promulgating
the June 23 letter was "akin to extreme insubordination"
and that, as the "libelous charges" she made therein were
not substantiated by her, she "must be ready to . . .
suffer the penalty of dismissal .... " He further noted in
his award that she had, "by doing what she did and then
refusing to acknowledge her error . . . destroyed the
entire fabric of an acceptable Employer-Employee rela-
tionship." In his award, the arbitrator also observed that
the "NLRB Complaint is not before [him] for determina-
tion." Nevertheless, he made an express finding that Bai-
ley's discharge was not due to "any union activity or
other activity protected by the NLRB."
C. Analysis
The testimony of the General Counsel's witness, Mary
Giles. establishes directly that the reason the June 23
letter was drawn up, signed, and delivered to the admin-
istrator of the Brookhaven facility was to protest the
way Respondent's supervisor, Corino, treated the maids. 2
Her testimony also clearly indicates that any reference to
Corino was purposely omitted from that letter and that
the maids hoped that the letter would result in an ar-
rangement whereby they would be free of her supervi-
sion. The June 23 letter directly attacks Respondent's
competence. The specific instances cited therein to sup-
port that view are not substantial when considered in
context with other facts. Thus, the letter refers to prod-
ucts used by Respondent that were "no good"; the evi-
dence indicates that the last time prior to the June 23,
1980, letter that the maids commented as to those prod-
ucts was in 1979. Again, the letter states that Respondent
is demanding that the maids do the same work as the
porters do. The fact is that Corino had told the maids a
month prior to that letter that they would be expected to
mop the floor, a job the porters have done. It is also a
fact that they were never assigned to do that work. The
letter ends with a statement that Brookhaven is being
given a timely warning of Respondent's incompetence.
was in any way denied procedural due process respecting the arbitration
hearing. The suggestion by her at the hearing before me that she was not
given a fair opportunity to testify at the arbitration proceeding has no
factual basis to support it.
2 The testimony of Bailey, the Charging Part), indirectly discloses the
same reason; she testified that the letter would result in there being no
"hassles or anything" and that Conno had always "stood over" the
maids.
149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no evidence that the Brookhaven administra-
tor was asked to assist the maids in their efforts to get
Corino to supervise them in a manner they would find
more acceptable to them, notwithstanding that that was
the reason the letter was sent, according to Mary Giles.
The evidence also reveals that the Brookhaven adminis-
trator did not accept Bailey's invitation to meet with the
maids. Instead, his complaints to Respondent led to
Bailey's discharge.
The essential issue to be decided in this case is wheth-
er Bailey's activities (a) in preparing, signing, and induc-
ing other maids to sign the June 23 letter, (b) in giving
that letter to the Brookhaven's administrator, and (c) in
refusing to apologize for the contents of that letter, are
protected by Section 7 of the Act. If so, the arbitration
award must fall as it would not be consonant with the
policies of the Act.
3 If her activities respecting that
letter are not protected by Section 7, the complaint must
be dismissed as the Board would then defer to the arbi-
tration award.4
The Board has held that an employee may properly
communicate with a third party in an effort to obtain the
third party's assistance in circumstances where the com-
munication was related to a legitimate, ongoing labor dis-
pute between the employees and their employer, and
where the communication did not constitute a disparage-
ment or vilification of the employer's product or its
reputation. s
In that case, the Board observed that the contours of
the ongoing labor dispute must not be delineated in too
restrictive a fashion and it discussed two of its earlier
holdings thereon. 6 In each of those two cases, a state-
ment by employees critical of the level of patient care
was held to be "a part of and related to the ongoing
labor dispute." I am satisfied that Bailey's actions in
drafting the June 23 letter, obtaining coworkers' signa-
tures thereon and giving it to Rothman with a request
for a meeting with him, establish that the communication
was related to the dissatisfaction of the maids with the
manner in which Corino supervised them and thus was
related to a legitimate ongoing dispute.
7
' Spielberg Manufactuning Company, 112 NLRB 1080 (1955).
' Ibid.
B See Allied Aviation Service Company of New Jersey. Inc., 248 NLRB
229 (1980), and cases cited therein.
' Richboro Community Mental Health Council Inc., 242 NLRB 1267
(1979), and Community Hospital of Roanoke Valley. Inc, 220 NLRB 217
(1975).
7 Compare the holding in Firehouse Restaurant, 220 NLRB 818 (1975),
where criticisms of the employer there by its employees were held to be
unprotected by the Act as those criticisms were in furtherance of a pri-
vate lawsuit and were not related to an ongoing labor dispute. In
N.LR.B. v. Local Union No 1229. International Brotherhood of Electrical
Workers, A.FL., 346 U.S. 464 (1953), the majority opinion commented,
respecting a leaflet distributed by some of the striking employees critical
of the struck employer, that the coexistence of a labor dispute was a "for-
tuity." In that case the Court expressly noted the Board's finding that the
leaflnet was not part of an appeal for support in the then pending dispute.
The facts in the instant case are sufficiently distinct from those in Fire.-
house Restaurant and in N.LR.B. v. Local 1229 to bring the June 23
letter within the ambit of an ongoing labor dispute, but just barely. In
drawing that conclusion, I am guided principally by the Board's admoni-
tion against being too restrictive in defining the contours of the labor dis-
pute.
Having found that the June 23 letter was so related,
the remaining issue to be considered is whether the letter
can properly be viewed as a public disparagement of Re-
spondent's services or an undermining of its reputation.
8
The first consideration respecting that point involves a
procedural question. Counsel for the General Counsel
has urged that the criticisms of Respondent as set out in
the June 23 letter were valid and were related to the
maids' working conditions. He endeavored to support
those contentions by offering extensive testimony as to
the efficacy of the cleansing agents used by Respondent
and the effect the use of soft brushes had on the efforts
expended by the maids. Counsel for Respondent disputed
those contentions and also urged me to follow the find-
ings of the arbitrator that the contents of the June 23
letter were false, defamatory, unrelated to legitimate
union activity, and unprotected. The Board has declined
to date to hold that it is bound by the findings of fact
made by an impartial arbitrator and instead it has indicat-
ed that a complete record should be made at the unfair
labor practice hearing.
9 It thus appears that it is incum-
bent on me to resolve the issues as to the efficacy of Re-
spondent's cleaning methods and the merits of the asser-
tions in the June 23 hearing on the maids' working con-
ditions. The evidence is clear that substantial time lapses
existed between the last complaints by the maids respect-
ing certain of the matters set out in the June 23 letter
and the date of the letter itself,'° and that the real but
unstated purpose of the letter was somehow for the
maids to be free of the supervisory methods used by
Corino. It thus seems that Bailey was grasping for rea-
sons to conceal the true purpose of the June 23 letter. In
view of this and of the unpersuasive tenor of the testimo-
ny submitted by Bailey respecting the bases of the com-
plaints set out in the June 23 letter, I find that there was
no objective merit to those complaints and only an insig-
nificant subjective interest in them on the part of the
maids, as of June 23.
The Board has held that an employee loses the protec-
tion of Section 7 of the Act by publicly ridiculing her
employer and thereby evidencing disloyalty to and dis-
paragement of her employer's judgment and capacity to
effectively perform its work.' l Relevant to that determi-
nation is whether the employees disclosed in the state-
ment the purpose of their appeal.
1
2
The intentional omission of any reference to the maids'
dispute with Corino in the letter, the lack of merit in the
complaints voiced therein, the strident language in the
letter of the many "deficiencies" in Respondent's serv-
ices, and the ominous warning at the end of the letter in-
a Allied Aviation Service Company of New Jersey, Inc.. rupra at 231,
citing Veeder-Root Company, a Division of Western Pacific Industries Inc.,
237 NLRB 1175, 1177 (1978).
i Pincus Brothers, Inc.,-Maxwell, 237 NLRB 1063 (1978); Dreis &
Krump Manufacturing. Inc., 221 NLRB 309, in. 1 (1975).
'o The maids last commented as to the cleansing agents in late 1979-
over 6 months prior to the June 23 letter.
"I American Arbitration Association. Inc., 233 NLRB 71 (1977). Therein,
the Board referred to its holding in Jefferson Standard Broadcasting Com-
pany, 94 NLRB 1507 (1951), affd. sub nom N.LR.B. v. Local Union No.
1229. International Brotherhood of Electrical Workers, 346 U.S. 464 (1953),
discussed above in fn. 7.
a2 Jefferson Standard Broadcasting Company, supra at 1511.
LSO
PROFESSIONAL PORTER & WINDOW CLEANING CO.
dicate that Bailey wanted Brookhaven to cancel its con-
tract with Respondent forthwith and that it was not the
intent of that letter to enlist the aid of Brookhaven in
their efforts to have Corino change her method of super-
vising them. Bailey's denunciation of Respondent in the
June 23 letter exceeded even the tone of the letter dis-
cussed in the American Arbitration Association case, supra,
which letter was held not to be protected under Section
7 of the Act. Accordingly, I find that the June 23 letter
reached the level of public disparagement necessary to
have deprived Bailey of the protection of the Act. On
that premise and as the arbitrator had considered the
identical issue, I conclude that the arbitration award is
consonant with the policies of the Act and in deference
to it, the complaint should be dismissed. 1 3
'5 Respondent has urged that it discharged Bailey because she refused
to apologize for writing the June 23 letter, and not because she wrote the
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
3. The complaint herein must be dismissed as the iden-
tical issue was resolved by an arbitrator and his award is
consonant with the policies of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
letter. While there is a distinction to be drawn, it is of an insignificant
factual point which has no bearing on the essential iwssue as to whether or
not the June 23 letter was protected.
151