Servair, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1982

265 N.L.R.B. 181 (N.L.R.B. 1982)

SERVAIR, INC.
Servair, Inc. and District Lodge 143 and Local
Lodge 601, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO and
Teamsters Local 959-State of Alaska affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, Party in Interest, and Local 302,
International Union of Operating Engineers,
AFL-CIO, Party in Interest. Cases 19-CA-
9594, 19-CA-9663, and 19-RC-83281
October 21, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND JENKINS
On June 30, 1978, the National Labor Relations
Board issued its Decision, Order, and Direction of
Second Election in the above-entitled proceeding,2
finding that the Respondent violated Section
8(a)(l) of the Act by creating the impression of
surveillance of employees' union activities, coer-
cively interrogating employees concerning their
union activities and sympathies, threatening em-
ployees with layoff or discharge because of their
protected activities, and threatening to refuse to
bargain with the Teamsters. The Board further
found that the Respondent violated Section 8(a)(2)
and (1) of the Act by devising a plan to prevent
the Teamsters from representing the employees,
causing an employee to distribute literature favor-
ing the Engineers over the Teamsters, urging the
employees to form their own labor organization,
maintaining a list of Teamsters advocates scheduled
for possible discharge and notifying the employees
of the list, writing a warning letter to a Teamsters
advocate and later discharging him, and discharg-
ing employees who were striking to protest the Re-
spondent's unfair labor practices. Also, the Board
determined that the Respondent violated Section
8(a)(3) and (1) of the Act by telling a clerical em-
ployee to screen out Teamsters supporters when
reviewing job applications, writing a warning letter
to a Teamsters advocate and subsequently dis-
charging him, and discharging employees who
were engaging in a strike to protest the Respond-
ent's unfair labor practices.
The Board ordered the Respondent to cease and
desist from these practices and from in any other
manner interfering with employee rights guaran-
teed under Section 7 of the Act. Affirmatively, the
Board ordered the Respondent to rescind and ex-
punge from its files the letter of warning given to
On April 21, 1981, the Executive Secretary, by direction of the
Board, issued an Order severing Case 19-RC-8328 from this proceeding.
2 236 NLRB 1278.
265 NLRB No. 14
employee George MacLean dated June 13, 1977,
and all references to it; to offer immediate and full
reinstatement, with backpay plus interest, to
MacLean and 19 named unfair labor practice strik-
ers; and to post appropriate notices.
On October 23, 1979, the United States Court of
Appeals for the Ninth Circuit issued its decision,3
wherein the court affirmed the Board's finding that
the Respondent, in response to the Teamsters drive
to oust the incumbent Machinists, interrogated em-
ployees, created the impression of surveillance,
threatened to discharge employees if the Teamsters
won, and discriminated against Teamsters job ap-
plicants.
The court also affirmed the Board's finding that
approximately 6 weeks after the initial election the
Respondent unlawfully terminated a leading sup-
porter of the Teamsters-MacLean. However, al-
though the court upheld the Board's finding that
MacLean was unlawfully discharged, it refused to
enforce at this time that portion of the Board's
Order requiring the Respondent to offer him rein-
statement. In the court's view, because the Re-
spondent had previously reinstated MacLean and
MacLean had later quit or left his employ, to order
his reinstatement now would be punitive and de-
prive the Respondent of a hearing on reinstate-
ment. The court remanded the case to the Board
"for appropriate findings [on] the question [of]
whether MacLean terminated his employment vol-
untarily."
The court also refused to affirm the Board's find-
ing that the Respondent unlawfully terminated the
19 employees who struck in protest of MacLean's
unlawful discharge. The court found that the evi-
dence did not support the Board's finding that the
Respondent's motive in discharging the 19 employ-
ees was to prevent the Teamsters from becoming
the employees' bargaining representative. The
court additionally found that, in any event, the
Board should have deferred to an arbitrator's deci-
sion upholding the discharge of the 19 employees.
In the court's view, on the facts of this case
"[t]here is little support for the Board's contention
that 8(a)(2) issues were so 'intertwined' with the
8(a)(3) discharge issues that the question about the,
19 strikers was not resolved at arbitration." Rather,
the court found that the only issue, both before the
arbitrator and before the Board, was the factual
one of the Respondent's motive in discharging the
19 strikers, and in its view this factual issue "was
the same whether it arose under 8(a)(2) or (3)." In
these circumstances the court stated that choosing
"to proceed on the basis of 8(a)(2) in addition to
s Servair, Inc. v. N.LR.B., 607 F.2d 258.
181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(3)" is not enough to "justify ignoring the arbi-
tration award," and it expressed the further con-
cern that, "if the Board's view of the law prevails,
contractual issues resolved by arbitration can
always be raised again before the NLRB by casting
them as statutory violations." The court stated, "If
an arbitrator, with the agreement of the parties, re-
solves an issue completely, that decision should not
be disregarded simply because the issue is capable
of being perceived as a statutory question."
On November 30, 1979, the General Counsel
filed a "Petition for Rehearing, and Suggestion for
Rehearing in Banc" on behalf of the National
Labor Relations Board. In the petition for rehear-
ing the General Counsel raised three separate
issues: (1) proof of unlawful motivation was not es-
sential in order to establish that the Respondent's
discharge of the 19 strikers was unlawful; (2) the
court's holding that the Board should have de-
ferred to the arbitrator's decision reflected a misap-
prehension of the Board's rationale for refusing to
defer on the facts of this case, and, even if the
court adhered to its view that the Board's stated
reason for refusing to defer to arbitration in this
case was inadequate, the court was required to
remand the case in order to permit the Board to
make initial factual findings and to exercise its dis-
cretion in accordance with the criteria set forth in
Spielberg Manufacturing Company, 112 NLRB 1080,
1081-82 (1955), and similar cases; and (3) the
court's declining to enforce the reinstatement pro-
visions of the Board's Order with respect to
MacLean was based on a misunderstanding of the
Board's procedures.
On May 22, 1980, the court issued the following
order:
Upon the petition for rehearing of the Na-
tional Labor Relations Board filed herein on
November 30, 1979, the opinion entered herein
on October 23, 1979, is withdrawn and the
cause is remanded to the National Labor Rela-
tions Board for further consideration under the
standards set forth in Spielberg Manufacturing
Co., 112 NLRB 1080, 36 LRRM 1152 (1955).
The above panel will retain jurisdiction if
further appellate review is necessary. [624 F.2d
92.]
On July 17, 1980, the Board notified the parties
of the remand and invited them to file statements
of position. Thereafter, statements were filed by
the Respondent and the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record as a whole,
the order of the United States Court of Appeals for
the Ninth Circuit remanding the proceeding, and
the statements of position, and, for the reasons set
forth infra, has decided to adhere to its original de-
cision of not deferring to the arbitrator's award
concerning the discharge of the 19 strikers.
The only issue presently before the Board on the
court's remand is whether the arbitral decision sus-
taining the discharge of the 19 employees who
walked out to protest MacLean's discharge is enti-
tled to deference under the Board's Spielberg crite-
ria.4 In Spielberg, the Board approved deferral to
arbitration provided: (1) the arbitral proceedings
were fair and regular, (2) all parties had consented
to be bound by the arbitrator's decision, and (3) the
award was not repugnant to the policies of the
Act.
Here, the facts show that 19 employees met at
the airport on June 19, 1977, to protest MacLean's
discharge and agreed that they would not work
until something was resolved with management
about the discharge. Manager Nyeland discharged
all 19 strikers. Seventeen of the nineteen strikers
filed grievances, and the Machinists demanded re-
instatement of all those discharged. The grievances,
which were processed in accordance with the
terms of the Respondent's expired contract with
the Machinists, were presented to arbitration. The
arbitrator ruled that all 19 discharges were for
cause, but that some of the grievants should be re-
instated because of mitigating factors. The arbitra-
tor concluded that, under the facts and circum-
stances of this dispute, the grievants were engaged
in work stoppage activity that was clearly in viola-
tion of the agreement. The agreement contained a
no-strike clause.
The Board in its decision found that the Re-
spondent's discharge of the 19 strikers was "an in-
tegral part" of its campaign of unlawful assistance
in violation of Section 8(a)(2) of the Act, and de-
clined to defer to the arbitrator's award that basi-
cally approved the discharge of the 19 employees.
The Board stated, "[T]he issue before the arbitra-
tor, the discharge of 19 employees, [was] so closely
interwined with, and, indeed, a part of, the 8(a)2)
allegations, which types of allegations never have
been and cannot be delegated to an arbitrator, that
a hearing and decision by the Board is required."
That, however, is not the only reason deferral
would be inappropriate in the circumstances of this
case. The Board will not defer to an arbitrator's
award unless the arbitral proceeding was fair and
regular on its face. Where there is an apparent con-
4 Spielberg Manufacturing Company, supra
182
SERVAIR, INC.
flict of interest between the employees and the
union representing them in the arbitration proceed-
ing, the Board properly refuses to defer. See
N.LR.B. v. International Longshoremen's & Ware-
housemen's Union & Local 27 [Port Angeles Joint
Port Labor Relations Committee], 514 F.2d 481, 483
(9th Cir. 1975); Kansas Meat Packers, a Division of
Aristo Foods, Inc., 198 NLRB 543, 544 (1972).
In the instant case, many of the employees who
struck over the discharge of MacLean, a leading
Teamsters supporter, also supported the Teamsters.
At the time of the strike, the incumbent Machinists
was seeking supporters for itself and was trying to
defeat the efforts of the Teamsters. The Machinists
had an interest in representing these striking em-
ployees in order to encourage them to be members
of the Machinists, but the Machinists could also
benefit if a substantial number of the employees
who were supporting the rival Teamsters was not
reinstated to their former jobs where they conceiv-
ably would continue their campaign against the
Machinists. Because of this potential conflict of in-
terest of the Machinists, the question of whether or
not the strike was an unfair labor practice strike
was not placed before the arbitrator for decision.
Nor did the arbitrator consider whether the seri-
ousness of MacLean's discriminatory discharge
warrant a conclusion that the employees were not
prohibited by the no-strike clause in the contract
from striking to protest the discharge. The Machin-
ists entire defense was that the employees did not
strike, but merely attempted to talk with manage-
ment when they were supposed to be working. The
Machinists representative told the striking employ-
ees that what they were doing was contrary to the
collective-bargaining agreement, and that under the
circumstances it was going to be difficult to get
their jobs back. Faced with apparent unanimity on
the part of the Machinists and the Respondent that
the employees' conduct was unjustified, and pre-
sented with no evidence or contention that would
justify the employees' strike despite the no-strike
clause, the arbitrator sustained the mass discharge.
We conclude that the employees' interests were not
adequately represented in the arbitral process.
The Supreme Court, in Mastro Plastics,5 held
that a waiver of the right to engage in "any strike"
did not, without more, embrace strikes against
unfair labor practices designed to interfere with the
employees' free choice of a bargaining representa-
tive. The Court there indicated that the no-strike
clause and the corresponding grievance-arbitration
provisions were more naturally interpreted as pro-
viding a mechanism for avoiding interruptions of
production due to disputes over the meaning and
5 Mastro Plastics Corp.. et al. v. N.L.R.B., 350 U.S. 270 (1956).
application of various contractual provisions. The
Court stated that, without more, such clauses do
not reach strikes which are in protest of unfair
labor practices "destructive of the foundation on
which collective bargaining must rest," that foun-
dation being the employees' "full freedom of asso-
ciation." Where an employer has engaged in seri-
ous unfair labor practices that undermine employee
free choice, and has thereby destroyed the founda-
tions of stable collective bargaining, an ordinary
no-strike clause does not constitute a legitimate and
substantial business reason that justifies the dis-
charge of employees who strike in response to seri-
ous unfair labor practices.
In the present case, the unfair labor practice
findings sustained by the Ninth Circuit establish
that the Respondent engaged in the kind of serious
unfair labor practices that undermine the founda-
tions of collective bargaining. Accordingly, we
find that the Respondent was precluded from rely-
ing on the no-strike clause to discharge the 19 em-
ployees who refused to work in protest of
MacLean's unlawful discharge.
For the foregoing reasons, we find that deferral
to the arbitrator's award would not be appropriate.
We believe that the evidence clearly shows that an
inherent conflict of interest was present in the Ma-
chinists representation of the striking employees
before the arbitrator. The evidence also establishes
that the unfair labor practice strike issue was not
raised before the arbitrator; nor was the question
whether the employees were justified in striking
even in the face of a no-strike clause in the con-
tract. In such circumstances, we are constrained to
conclude that the arbitration was not fair and regu-
lar and that it would be repugnant to the purposes
of the Act to defer to the arbitrator's award.
The foregoing discussion has been responsive to
the only issue before us on remand from the court.
However, because of concerns earlier expressed by
the court in its now-withdrawn opinion, we deem
it appropriate to take the opportunity to address
ourselves to those concerns.
With respect to the discharge of the 19 striking
employees, we believe it unnecessary to determine
whether the Respondent acted with a discriminato-
ry motive. In our view, the issue is whether the
striking employees were engaged in protected ac-
tivity and, if so, whether they were discharged for
that reason.
We have found on the basis of the record evi-
dence that the strike was caused by the Respond-
ent's unlawful discharge of MacLean and that the
employees' action was to protest this discharge.
We have also found, under the doctrine enunciated
in Mastro Plastics, supra, that the unlawful dis-
183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge of MacLean was a serious unfair labor prac-
tice which goes to the very heart of the Act. Ac-
cordingly, we concluded that the no-strike clause
in the contract did not prohibit employees from
striking to protest the unlawful discharge of Ma-
cLean. Consequently, the 19 striking employees
were engaged in protected concerted activity and
when the Respondent discharged them for this
reason-which is undisputed-the discharges were
unlawful, irrespective of the Respondent's motive.
With respect to our finding that employee
MacLean was unlawfully discharged and that as a
matter of remedy he is entitled to reinstatement
and backpay, our rationale was as follows. We did
not believe that anyone could seriously contest our
finding that MacLean's discharge was unlawful
under the Act. The only real issue raised is wheth-
er, after the discharge and reinstatement by the Re-
spondent, MacLean voluntarily left his employ-
ment and thereby forfeited his right to reinstate-
ment and partial backpay. The simple answer to
this is that on the record before us we are unable
to determine whether MacLean's departure was
truly voluntary. In such circumstances, we are un-
willing to resolve the doubt in favor of the wrong-
doer and, in accordance with our customary prac-
tice, we leave the resolution of such matter to the
compliance stage of the proceeding where both the
General Counsel and the Respondent will have the
opportunity to address this issue.
Accordingly, in light of the foregoing findings
and conclusions, we shall affirm our prior Decision
and Order in this proceeding.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby affirms its original Decision
and Order in this proceeding reported at 236
NLRB 1278 (1978).
MEMBER FANNING, concurring:
I agree with the result reached by my colleagues
in affirming the Board's prior Order in this pro-
ceeding. I conclude that declining to defer to the
arbitrator's award properly obtains here, where the
evidence shows the strike was occasioned by, and
in response to, the Respondent's unlawful discharge
of employee MacLean. Thus, under Mastro Plastics,
supra, the strikers did not forfeit their protection
under the Act. The Respondent by virtue of its
commission of serious unfair labor practices was
not entitled to rely on the no-strike clause here to
discharge the 19 employees who protested those
actions. The arbitrator did not address that issue-
it apparently was not presented for consideration-
and his award as rendered was in my view incom-
patible with Board and court precedent. Accord-
ingly, I deem deferral to that award to be inappro-
priate.6
CHAIRMAN VAN DE WATER, concurring in part
and dissenting in part:
I agree that the Board should not defer to the ar-
bitration award upholding the discharge of the 19
unfair labor practice strikers. Although I favor a
string deferral policy, I would not defer, as stated
in my dissent in Professional Porter & Window
Cleaning Co., Division of Propoco, Inc., 263 NLRB
136 (1982), where the arbitration proceedings and
award fail to meet the standards for deferral set by
Spielberg Manufacturing Company, 112 NLRB 1080
(1955). Here, because of the apparent serious con-
flict of interests between the strikers and their
union representative at arbitration, the arbitration
proceedings do not "appear to have been fair and
regular," the first Spielberg deferral standard. Ac-
cordingly, deferral is inappropriate.
I also agree that Mastro Plastics Corp. et al. v.
N.LR.B., 350 U.S. 270 (1956), is applicable here
and that the strike in protest of the Respondent's
discharge of employee MacLean was protected de-
spite the contractual no-strike provision. Although
not every strike over an unfair labor practice or
over an unlawful discharge would warrant disre-
gard of a no-strike provision, the Respondent's dis-
charge of the leading Teamsters advocate, follow-
ing other related serious unfair labor practices, con-
stitutes misconduct sufficiently serious to justify the
strike. The Respondent's discharge of MacLean
was part of its unlawful plan to discriminate against
employees who supported the Teamsters and its
design to prevent the Teamsters from becoming the
representative of its employees. As found by the
Administrative Law Judge and adopted by the
Board in the original Decision and Order herein,
"Respondent's course of conduct . . . was perva-
sive, forceful, and in flagrant violation of the Act."
236 NLRB at 1285.
I do not agree that MacLean is entitled to a rein-
statement order, even if it were contingent on com-
pliance proceedings. Although MacLean was un-
lawfully discharged, he was reinstated pursuant to
an agreement reached at the third step of the griev-
ance procedure. Shortly after his reinstatement,
however, MacLean left the Respondent's employ-
ment. In these circumstances, a reinstatement order
a In view of this conclusion, I find it unnecessary to conjecture as to
possible reasons why this question-albeit in good faith-might not have
been specifically litigated before the arbitrator, nor to derive conclusions
therefrom. I note in passing, however, that the Board did not specifically
posit that rationale in our earlier decision, believing it sufficient to note
the plexus between the strike discharges and the 8(aX2) issue, which is
ont susceptible to deferral.
184
SERVAIR, INC. 185
is proper only if the record shows that MacLean MacLean's departure was involuntary. According-
left involuntarily or was constructively discharged. ly, on this record, reinstatement is not a proper
Although the majority state that there is a real remedy. 7
issue over whether MacLean left voluntarily, they
also recognize that the record fails to show under
what circumstances MacLean left. Thus, so far as
the record shows, MacLean was reinstated and 'MacLean may, however, be entitled to backpay from when he wa
then quit; the record does not show that discharged until he was reinstated, but that is a matter properly left tothe compliance stage of this proceeding.