Sawin & Co., Inc.

National Labor Relations Board - Board Decisions

Nov 12, 1985

277 N.L.R.B. 393 (N.L.R.B. 1985)

SAWIN & CO
Sawin & Co., Inc . and Hector Rodas . Case 31-CA-
14057
12 November 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 29 May 1985 Administrative Law Judge
Earldean V.S. Robbins issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting 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.
i In agreeing with the judge, we find that the General Counsel failed
to carry the burden of establishing that the facts generally relevant to the
alleged unfair labor practice were not presented to the arbitrator at some
time during the arbitration proceeding. See Martin Redi-Mix, 274 NLRB
559 (1985)
Richard S. Zuniga, Esq., for the General Counsel.
Donald B. Wallace, Esq., of Los Angeles, California, for
the Respondent.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge.
This matter was heard before me in Los Angeles, Cali-
fornia, on various dates in October and November 1984.
The charge was filed by Hector Rodas, an individual, on
16 April 1984 and served on Sawin & Co., Inc. (Re-
spondent) on 17 April 1984. The complaint which issued
on 27 July 1984 alleges that Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act. The
basic issues herein are (1) whether the Board should
defer to an arbitration award rendered with respect to
Repondent's refusal to reinstate seven economic strikers
allegedly because of picket line misconduct and (2) if
not, whether these employees engaged in picket line mis-
conduct serious enough to deprive them of the protec-
tion of the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
393
At all times material herein Respondent, a California
corporation with an office and place of business located
in Chatsworth, California, has been engaged in the busi-
ness of furniture manufacturing. Respondent, in the
course and conduct of its business operation, annually
sells and ships goods and services valued in excess of
$50,000 directly to customers located outside the State of
California.
The complaint alleges, Respondent admits, and I find
that Respondent is now, and has been all times material
herein, an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that United Industrial Workers of the United Furniture
Workers of America, Local 1010, AFL-CIO (the Union)
is now, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Union was certified as the collective-bargaining
representative of Respondent's employees on 30 May
1983 and thereafter the Union and Respondent entered
into negotiations for a collective-bargaining agreement.
After failing to reach an agreement on a contract, the
Union took a strike vote and about 130 to 150 of the ap-
proximately 170 unit employees went out on strike on 1
November 1983.1 A picket line was maintained through-
out the 3-week strike. During the first week, about 120
to 130 of the strikers were on the picket line at one time.
Thereafter, pursuant to a temporary restraining order,
the number of strikers on the picket line was limited to
about 50 at any one time.
There were no negotiations during the first week of
the strike but thereafter negotiations resumed. During a
negotiation session on 17 November the outstanding
issues and the settlement of the strike were discussed by
the parties. During the course of this discussion, accord-
ing to Al May, National Coordinator of Organization for
the Union's parent body, he told Phillip Sawin, Respond-
ent's owner and president, that if agreement could be
reached on the outstanding issues, the Union would ter-
minate the strike and the employees would return to
work the following Monday. Sawin said he could rein-
state only about 30 of the strikers, since he would not
terminate the loyal employees who were crossing the
picket line to work during the strike and thus had no
place for the other strikers. Sawin agreed, however, that
with the exception of 16, he would put the other strikers
on a preferential hiring list and recall them as needed. As
I All dates hereinafter in October, November, and December are in
1983 and in January and February, dates are in 1984
277 NLRB No. 44
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the 16, he said he would not reinstate them because
there had been violence in the strike , they had picketed
his house , tires had been slashed , and there was just no
way they could ever return to Respondent's employ.
After some discussion May proposed , and Respondent
subsequently agreed, that they would arbitrate the issue
of the 16 strikers who Sawin said would not be reinstat-
ed or placed on a preferential hiring list. Of these 16, ac-
cording to May, Sawin said Respondent had pictures of
them shouting , he knew they were picketing his house,
and they were suspected of engaging in other miscon-
duct.
An arbitration hearing was held on 16 and 17 Febru-
ary. Representing the Union at the hearing were May
and Cesar Reyes, a business agent and an organizer for
the Union . Representing Respondent was its labor con-
sultant Kenneth White. The parties submitted a joint sub-
mission agreement which set forth the issues as:
A. Did the Company act unfairly by refusing to
reinstate the below listed individuals , because of
their actions during the strike , when the strike was
concluded?
B. Because of their actions, are the below listed
employees indebted to the Company in the amounts
stated opposite their names because of damages sus-
tained by the Company; and if not, what should the
damages be? (Punitive & Actual.)
The arbitrator dismissed the case with prejudice as to 3
of the 16 strikers.2 Reyes testified, without contradiction,
that no witnesses testified on behalf of Respondent at the
arbitration hearing. With the exception of Baltazar San-
doval, all of the alleged discriminatees herein-Jose
Beas, Juan Carlos Beas, Rodas, Ubaldo Rodriguez,
Miguel Zepeda, and Guillermo Tortola-were present at
the arbitration hearing and testified on their own behalf.
The arbitrator's opinion set forth the facts and posi-
tions of the parties and his conclusions as follows:
At issue are the reinstatements of the other
twelve individuals. Their longevity at the plant
ranges from six months to ten years of service.
The Company presented a lengthy and substantial
brief prepared by their Attorneys pursuant to secur-
ing Restraining Orders against the Union during the
strike. The principle issues in the Orders were to
keep the strikers from blocking ingress and egress
to the plant ; harassing of nonstriking employees;
consuming of alcoholic beverages on the picket
lines; and otherwise damaging company property.
The Company also presented evidence that the
strikers had caused damages in the amount of
$90,119.83. This amount also included the costs for
security services during the course of the strike. Af-
fidavits of employees to support charges of harass-
ment were attached to the Brief.
The twelve witnesses responded to eleven ques-
tions put to them by the Union Counsel. Their re-
sponses were identical . However, skillful cross ex-
2 One made his own arrangements to return to work and the other
three failed to appear These three could not be located by the Union.
amination brought forth a variety of answers to the
activities of the individuals while they were on the
picket line. It is noteworthy that many answers on
cross-examination were "I don 't recall-I don't re-
member" or in the alternative "I don't understand
the question" even though they were effectively
translated by the Union's translator.
IV. POSITION OF COMPANY
The Company forcefully argued that they had
not experienced, before or after the strike, the huge
amounts of damages as a result of employees
slashed tires. The Restraining Order Petition shows
photos of individuals blocking cars either as individ-
uals or as groups and yet none of the witnesses in
these proceedings saw or heard any such thing. The
streets were littered with beer cans but no one ever
saw anyone drink anything.
Lastly, they argued that, aside from the credibil-
ity of the testimony, all were given the opportunity
to return but failed to do so. Based on the forego-
ing, they prayed that the individuals not be reinstat-
ed and that they should be held to answer in dam-
ages as stated in Section II of this Opinion.
V. POSITION OF UNION
The Union argued forcefully that the position of
the Company as to these individuals was unjust.
The brief for the TRO was requested early on in
the strike and even though photos did show more
than the legally authorized number of pickets, it did
not specifically enumerate the individuals in this
proceeding.
The Union also argued that the basis for the dam-
ages requested was not stated sufficiently at this
proceeding to grant that type of relief.
They therefore prayed that all the individuals be
reinstated with full seniority benefits and back pay
from the ending date of the strike to the present.
VI. CONCLUSIONS
Before proceeding to decision it is necessary to
advise the Parties on how this decision was
reached. This is a case of first impression for this
Arbitrator, since there is no contract upon which to
base a decision. In addition, there are no grievances
or contractual precedents between the Parties to
assist fashioning a resolution.
Therefore, this decision turns on the credibility of
each individual witness as to his own case. The
credibility was determined by this Arbitrator based
on his years of experience in examining witnesses in
same or similar circumstances.
It is also noteworthy that the Union is fashioning
their direct examination choice to use the identical
eleven questions for each individual witness. This
form failed to assist the Arbitrator. However, the
skillful cross-examination of the witnesses proved to
be the basis upon which credibility was established.
It must be stated that those witnesses who were ca-
pable of responding in a forthright manner to direct
SAWIN & CO
examination but could not grasp or understand
questions on cross-examination, did little if anything
to assist their individual cases.
Based on the foregoing facts and testimonial evi-
dence, the Arbitrator believes that there was suffi-
cient intrinsic evidence presented to fashion the
Award that is made.
The arbitrator then found that the Company had acted
unfairly by refusing to reinstate five of the named strik-
ers but had not acted unfairly by refusing to reinstate
Zepeda, Rodas, Rodriguez, Sandoval, Tortola, Juan
Beas, and Jose Beas.
All the alleged discriminatees who testified at the
hearing herein denied they ever punctured tires or saw
anyone else do so, threw nails or tacks on the street or
on Respondent's property, threw rocks or other objects
at vehicles of persons crossing the picket line, carried
weapons or drank alcoholic beverages on the picket line
or were intoxicated on the picket line or in any manner
caused damage to the property of the Company or em-
ployees. Rodas, Zepeda, Juan Beas, and Tortola denied
they ever blocked ingress into and egress from Respond-
ent's facilities.
Jose Beas, Rodas, and Juan Beas denied they ever hit
any person or vehicle crossing the picket line. Rodas,
Juan Beas, and Tortola denied speaking obscenities to
persons crossing the picket line. Jose Beas, Rodriguez,
and Zepeda admit that they did speak obscenities to per-
sons crossing the picket line and Juan Beas testified that
he heard other strikers speak obscenities. Jose Beas, Ro-
driguez, Zepeda, and Tortola testified that they made de-
rogatory remarks to persons crossing the picket line. Jose
Beas, Rodriguez, and Tortola denied threatening employ-
ees crossing the picket line.3 Jose Beas, Zepeda, Juan
Beas , and Tortola denied having any fights or scuffles on
the picket line. Rodriguez admits that he engaged in a
scuffle on the picket line; however, according to him, the
fight was initiated by one of the nonstrikers.4
Rodas, Rodriguez, and Tortola denied ever picketing
Phillip Sawin's home or the home of anyone else. Jose
Beas, Zepeda, and Juan Beas testified that they did
picket the home of Phillip Sawin but deny that any of
the picketers yelled while they were picketing the Sawin
home. Jose Beas testified that Mrs. Sawin was in the
house for a portion of the time they were picketing. Jose
Beas also testified that he and Zepeda picketed the home
of Bill Sawin, Phillip Sawin's brother. Zepeda testified
that on one occasion he and Juan Beas followed Bill
Sawin when he left Respondent's facility.
B. Positions of the Parties
Respondent offered no evidence as to the substantive
issues involved herein. Rather, relied on its argument
that the Board should defer to the arbitration because the
arbitration was conducted fairly, all parties agreed to be
bound, the arbitrator was presented with the same facts
a The other alleged discrimmatees were not questioned in this regard.
4 In Rodriguez' prehearmg affidavit, he mentions making remarks to
persons crossing the picket line but did not mention yelling obsecenities
Juan Beas admits that his prehearing affidavit was untrue in that it states
that the picketing strikers never blocked the entrance
395
underlying the present unfair labor practice charge, and
the arbitrator 's award is not clearly repugnant to the
Act.5
It is undisputed that Respondent and the Union agreed
to be bound by the arbitration proceedings . However,
the General Counsel contends that deferral is inappropri-
ate because:
1. The arbitration proceedings do not appear to
have been fair and regular in that Respondent did
not present any witnesses at the arbitration hearing
but instead submitted the brief , along with accom-
panying affidavits of employee witnesses, prepared
in support of its efforts to secure restraining orders
against the Union, thereby denying the alleged dis-
criminatees in the Union any meaningful opportuni-
ty to cross -examine adverse witnesses . See Honolulu
Star-Bulletin 123 NLRB 395; Versr Craft Corp., 227
NLRB 877.
2. The award provides no basis for determining
whether the arbitrator considered the statutory issue
since the arbitrator was faced with the issue of
whether Respondent acted "unfairly" by refusing to
reinstate the alleged discriminatees because of strike
misconduct whereas the statutory issue is whether
the alleged discriminatees engaged in "serious acts
of misconduct" such as would disqualify them from
the protection of the Act, Clear Pine Moldings, Inc.,
268 NLRB 1044 , and the arbitrator failed to make
definitive findings of fact with respect to what ac-
tions the alleged discriminatees engaged in and
whether such conduct was sufficiently serious to
remove them from the protection of the Act. See
Triple A Machine Shop, 245 NLRB 136 and Ameri-
can Freight System, 264 NLRB 126.
3. The only evidence as to the alleged miscon-
duct was heresay evidence based on Respondent's
temporary restraining order brief that unidentified
and unnamed strikers had blocked ingress and
egress to the plant; had harassed nonstriking em-
ployees; consumed alcoholic beverages on the
picket line , slashed tires and otherwise damaged
company property .6 See Coronet Casuals, inc., 207
NLRB 304, 305; Moore Business Forms, Inc., 224
NLRB 393, 394,.
5. The arbitrator who was presented with no af-
firmative evidence of misconduct by the individual
strikers involved in the arbitration hearing ground-
ed his award on his disbelief of their denial that
they had engaged in any misconduct despite "a
well-established principle of law that the mere dis-
5 During the prehearing stage of this matter, the Regional Director ini-
tially deferred to the arbitration award and dismissed the charge here
Thereafter, Rodas appealed from the dismissal, and the Regional Director
decided to view the appeal as a motion for reconsideration of the deci-
sion to dismiss , and upon reconsideration, rescinded the dismissal and
subsequently issued the complaint herein
8 No evidence was submitted in support of this contention. The sole
reference to identification of perpetrators in the arbitration award recites
only that the discrimmatees could not be identified lm the photographs
showing the blocking of ingress and egress
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
belief of testimony does- not, of itself support a basis
for finding that an act has occurred." See Jannigan
v. Taylor, 344 F.2d 781, 784 (C.A. 1, 1965).
C. Conclusions
The Board has long recognized that national policy
favors the voluntary settlement of labor disputes and that
this policy can best be served by recognizing an arbitra-
tor's award where the proceedings appear to have been
fair and regular, all parties had agreed to be bound, and
the arbitration decision is not clearly repugnant to the
purposes and policies of the Act. Spielberg Mfg. Co., 112
NLRB 1080 ( 1955). This rule was reaffirmed by the
Board in Olin Corp., 268 NLRB 573 (1984). However, in
that case the Board rejected the idea that arbitration
awards are appropriate for deferral only when the Board
determines on de novo consideration that the award dis-
poses of the issues just as the Board would have. Ac-
cordingly, the Board adopted the following standard for
determining the appropriateness of deferral (268 NLRB
at 574):
We would find that an arbitrator has adequately
considered the unfair labor practice if (1) the con-
tractual issue is factually parallel to the unfair labor
practice issue, and (2) the arbitrator was presented
generally with the facts relevant to resolving the
unfair labor practice . [Footnote omitted.] In this re-
spect, differences, if any, between the contractual
and statutory standards of review should be
weighed by the Board as part of its determination
under the Spielberg standards of whether an award
is "clearly repugnant" standard , we would not re-
quire an arbitrator's award to be totally consistent
with Board precedent . Unless the award is "palpa-
bly wrong" [footnote omitted ], i.e.,` unless the arbi-
trator's decision is not susceptible to an interpreta-
tion consistent with the Act, we will defer.
Additionally, the Board held that the party seeking to
have the Board reject deferral has the burden of affirma-
tively demonstrating the defects in the arbitrable process
or award.
In view of this standard I am not persuaded by the
General Counsel's argument. As noted above, it is undis-
puted that Respondent and the Union agreed to be
bound by the arbitrator's decision, and the Charging
Party and the other alleged discriminatees testified in
their own behalf. There is no evidence that the Union or
the alleged discriminatees sought to compel the attend-
ance of the affiants at the arbitration hearing or protested
any facet of the arbitration proceeding, including the
Employer's reliance on affidavits attached to its brief
submitted in support of its efforts to secure restraining
orders against the Union and the attendant lack of op-
portunity to cross-examine the affiants. In these circum-
stances, I cannot conclude that the proceeding was not
fair and regular because Respondent relied on affidavits
rather than presenting witnesses. The Board does not re-
quire that the strict standard of a Board hearing be met
in order that an arbitration award be honored. Honolulu
Star-Bulletin, 123 NLRB 395, 408, 416-417 (1959); B & L
Motor Freight, '253 NLRB 115 (1980).
Nor can I find that the arbitrator has not adequately
considered the unfair labor practice. The issue before the
arbitrator-whether Respondent unfairly refused to rein-
state the alleged discriminatees because of their conduct
during the strike-is factually parallel to the unfair labor
practice issue-whether the alleged discriminatees en-
gaged in strike misconduct serious enough to remove
them from the protection of the Act.7 As to the argu-
ment that the arbitrator was not presented with the facts
relevant to resolving the unfair labor practice issue, the
burden is on the General Counsel to establish that rele-
vant facts were not presented. This burden has not been
met. There is no evidence in the record as to what the
affidavits did or did not cover.
Nor am I persuaded by the General Counsel's argu-
ment that "the mere disbelief of testimony does not of
itself support charges of harassment but does not specifi-
cally recite what the evidence was nor whether the al-
leged discriminatees were specifically identified as perpe-
trators. However, the burden of proof in discharge and
discipline arbitrations is generally on the employer," and
I cannot assume, without supporting evidence, that the
arbitrator was so derelict in his duties as to not require
that the employer meet this burden. Here the General
Counsel's burden of establishing the existence of such de-
ficiencies has not been met. In the circumstances, I
cannot conclude that the arbitrator's decision is not,sus-
ceptible to an interpretation consistent with the Act.
Accordingly since the parties agreed to be bound by
the arbitrator's award, the statutory issue and the issue
before the arbitrator are factually parallel, there is insuf-
ficient evidence to establish that facts generally relevant
to the unfair labor practice issue were absent from the
record before the arbitrator's award is not palpably
wrong, I find that deferral to the arbitrator's award is ap-
propriate.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 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. It will effectuate the purposes and policies of the
Act to defer to the arbitration award and to dismiss the
complaint in its entirety.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
ORDER
The complaint is dismissed in its entirety
7 Clear Pine Mouldings, 268 NLRB 1044 (1984)
8 Elkouri and Elkouri, How Arbitration Works 621-623 (3d ed 1973),
Owen Fairweather, Practice and Procedure in Labor Arbitration 254-256
(2d ed 1983)
B If no exceptions are filed as provided by 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