Shimazaki Corp.

National Labor Relations Board - Board Decisions

Feb 13, 1985

274 N.L.R.B. 15 (N.L.R.B. 1985)

SHIMAZAKI CORP
Shimazaki Corporation and George Condento. Case
22-CA-11625
13 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 17 September 1984 Administrative Law
Judge Steven Davis issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief.
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and briefs 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.
DECISION
STATEMENT OF THE CASE
STEVEN DAVis, Administrative Law Judge. Pursuant
to a charge filed on May 12, 1982, by George Condento,
a complaint was issued by Region 22 of the National
Labor Relations Board on April 10, 1984, against Shima-
zaki Corp. (Respondent) The complaint, as amended at
the hearing, alleges that Condento was suspended and
discharged, in violation of Section 8(a)(1) and (3) of the
Act, because he presented or attempted to present a
grievance under the collective-bargaining agreement, and
otherwise engaged in union and concerted activities.
Respondent denies the material allegations of the com-
plaint, and alleges, as an affirmative defense, that it
should be dismissed because of an arbitration award, pur-
suant to Olin Corp., 268 NLRB 573 (1984).
The case was heard before me in Newark, New
Jersey, on July 12, 1984.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, having its office and place of business in
Port Newark, New Jersey, has been engaged in provid-
ing a port service operation for imported motor vehicles
and related services During the past 12 months, in the
course of its business operations, Respondent provided
services at the Port Newark facility valued in excess of
$50,000 for American Honda Motor Co., Ltd., an enter-
prise which is directly engaged in interstate or foreign
15
commerce Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and that Local 1478-2,
International Longshoremen's Association (the Union), is
a labor organization within the meaning of Section 2(5)
of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
Respondent is engaged in the business of transporting
imported Honda vehicles at Port Newark. The vehicles
arrive by ship, are unloaded by longshoremen, and are
placed by them in certain storage areas. Respondent's
employees drive the vehicles from the storage areas to
certain shipping areas where they are loaded onto car
carriers for transportation to automobile dealerships The
employees involved herein, covered by a collective-bar-
gaining agreement with the Union, are Respondent's
drivers, who drive the cars between the storage and
shipping areas, and the shuttle driver, who drives a van
carrying 9 to 12 drivers, to the storage areas. Condento,
a shuttle driver, transported the drivers to the storage
area where the drivers then moved the cars to the ship-
ping area. Condento then drove to the shipping area,
picked up the drivers, and took them to the storage area
where the process was repeated
2. The slowdown
On April 12, 1982, Condento reported to Manager
Rudy Locciola his suspicion that the drivers were engag-
ing in a work slowdown and suggested that Lucciola ob-
serve them. Later that day Lucciola observed the driv-
ing speeds and number of trips made by Condento and
the drivers.' Lucciola observed that Condento was driv-
ing his van extremely slowly between the storage and
shipping areas. Specifically, he saw the van pass 3 times
during his 30- to 45-minute observation, whereas a one-
way trip should only take 3 minutes. According to Luc-
ciola, as a result of the slowdown, he assigned some 10
body shop employees to work overtime and transport
the cars on each of the days involved
On April 15, Condento was given an employee warn-
ing report which essentially stated that on April 12, 13,
and 14, Condento (a) drove the van excessively slowly,
thereby slowing down the operation and (b) wasted time
in the shipper's office The warning noted that Condento
has an "irregular outlook" toward his work, and con-
cluded that "should this persist he will be relieved of his
position permanently."
There is conflicting evidence as to whether Condento
engaged in a deliberate slowdown:
(a) As set forth above, Lucciola testified that he ob-
served Condento driving the van extremely slowly on
the days involved.
1 Lucciola made observations on 2 days April 12, and on either April
13 or April 14
274 NLRB No. 4
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Condento testified that he did not engage in a de-
liberate slowdown and that he drove at normal speeds.
However, he conceded that traffic was congested on
April 12 through 14 and, as a result, he may have driven
slower than usual.
(c) Michael Smith, Respondent's attorney who repre-
sented it at the arbitration of Condento's discharge, testi-
fied at the instant hearing that at the arbitration, Con-
dento admitted his participation in and the seriousness of
the slowdown and also admitted that he knew that 10
additional employees were paid to complete the work.
(d) In his opinion and award, the arbitrator stated that
"at the hearing, the grievant admitted his participation in
and the seriousness of the work slowdown " The arbitra-
tor also stated that "the parties stipulated that he was in-
volved in a three day work slowdown on April 12, 13
and 14, 1982, for which he received an employee warn-
ing report."
It is strange that Condento would alert his supervisor
of a slowdown, invite him to observe the participants,
and then himself engage in a slowdown knowing that his
supervisor was watching However, based on Respond-
ent's witnesses' testimony and the arbitrator's findings
that an admission of a slowdown was made by Condento
and the parties stipulated to that, I must find that Con-
dento did, in fact, engage in a slowdown. I also note that
Condento's testimony, as compared to that of Respond-
ent's witnesses, was lacking. As to material aspects of the
case, particularly what change of hours he was protest-
ing, his testimony was wrong. I therefore do not credit
his testimony where it conflicts with Respondent's wit-
ness.
The following day, April 16, a notice was posted by
management in the shipper's office. The notice stated
that, effective April 19, the quitting time would be 5
p.m. It had previously been 4:15 p in. The notice also
stated that the lunch period was extended from 30 to 60
minutes The change was made because of the later after-
noon and evening arrival of the trucks at the port. Ac-
cordingly, Respondent's employees were needed later to
locate and place in the shipping area any cars needed to
complete a shipment
3. The shop steward incident
On the day the notice was posted, April 16, Condento
was in the shipper's office. Also present were Shop
Steward Joseph Martino, and Shipping Foreman William
Bastien and Supervisor Peter Martino.
It is undisputed that Condento expressed his dissatis-
faction with the new working hours and asked Steward
Martino if Respondent was permitted to do this, and
whether the Union could do anything about it.2 Steward
Martino replied that Respondent could properly change
the hours. Condento then began cursing him and Joseph
Martino responded in kind, with the same obscenities
The exchange, during which their voices were raised,
lasted a few minutes and ended when Joseph Martino
left the room
2 Joseph Martino testified that Condento asked him whether the
change in hours violated the contract
Condento testified that prior to this incident the driv-
ers who rode on his van complained "constantly" to him
of the change in hours since such change went into
effect, which he estimated to be 2 to 5 weeks He also
stated that the change, which he said occurred on April
15, involved a later starting time-from 7 to 8 a.m -but
later corrected his testimony and stated that the change
was later quitting time.
I cannot accept Condento's testimony that the drivers
complained to him about the change of hours, or that on
April 16 he told Steward Martino that employees were
unhappy with such change. First, inasmuch as the
change was first announced on April 16, his coworkers
could not have complained to him about the new hours
for several weeks as he testifted.3 I similarly reject his
testimony that his reason for approaching Martino on
April 16 was to complain that his fellow workers were
dissatisfied with the new hours It is clear, as testified by
Respondent's witnesses, that Condento's discussion with
Martino was precipitated by Condento's reading the
notice posted on April 16 regarding the change. It is
likely that if Condento had been listening to his cowork-
ers' complaints for several weeks he would have con-
fronted Martino earlier with this issue. It is just too coin-
cidental that Condento chose April 16, the date the
notice was posted, to speak to Martino about the change.
I accordingly find that the employees' first awareness
of the change took place on April 16 when the notice
was posted and that Condento confronted Martino about
the matter because he had read the notice 4
I find it unnecessary to decide whether, as testified by
Condento, he told Martino that he wanted to file a
"grievance" regarding the change in hours, for the rea-
sons discussed infra.
On leaving the shipper's office after the altercation
with Condento, Joseph Martino told Manager Lucciola
what happened, and reported that Condento complained
about the change in hours and questioned whether Re-
spondent could change the hours. Supervisor Peter Mar-
tino reported the same incident to Lucciola. Lucciola
conceded that, as a result of his conversations with the
Martinos concerning the incident, he suspended Con-
dento The suspension letter, signed by Lucciola, and
given to Condento on April 19, stated.
On the afternoon of April 16, 1982 Mr George
Condento did with total disrespect and disregards
for both the age and position (shop steward) held
by Mr. Joseph Martino, degrade and verbally abuse
Mr. Martino as was witnessed by their peers. This
was brought about by Mr. Condento's dissatisfac-
tion of policy changes within the company. Mr.
Condento is a foreman and should act as such, not a
manager, nor a mediator or shop steward. He has
3 Although two drivers testified on behalf of the General Counsel,
they were not asked any questions concerning the change in hours or
whether they complained to Condento about the new hours
4 Respondent Attorney Smith testified that at the arbitration hearing
Condento testified that he complained to Steward Martino after he read
the notice regarding the change in hours As set forth above, I have re-
jected Condento's testimony that he did not see the notice
SHIMAZAKI CORP
succeeded in creating a problem in which he is the
source.
Decision. Beginning April 20, 1982
Two day suspension, after which notification will
be given as to whether he will be allowed to contin-
ue work here and in what capacity. That decision
will be final.
Should Mr Condento be allowed to continue
working, any infraction of rules and regulations
whatsoever, will result in immediate dismissal.
At the instant hearing, when asked to explain his
phrase that Condento should not act as a manager, medi-
ator, or shop steward, Lucciola testified that he meant
that his job is that of a foreman of the drivers and "if he
is to submit a grievance, it is to be submitted correctly."
When the suspension was given to Condento, Lucciola
had decided to fire Condento because of his prior work
record, including the latest April 16 argument with
Steward Martino.5 At the time Lucciola decided to sus-
pend and discharge Condento, he was unaware that Con-
dento had attempted to file a "grievance" with Steward
Martino but, of course, he possessed knowledge of Con-
dento's questioning as to whether the change in hours
was permitted by the contract.
On April 21, 1982, Lucciola, who had by then decided
to discharge Condento, believed that he needed verifica-
tion from the occupants of Condento's van that he (Con-
dento) engaged in a slowdown. He asked General Fore-
man and admitted Supervisor Peter Martino to interview
Condento's passengers. Martino did so and reported to
Lucciola that the drivers-passengers stated that it was
Condento and not them who had slowed down. Lucciola
typed a statement which 8 men signed, which stated in
effect that Condento drove the van on the 3 days at issue
"extremely slow," and engaged in a "slowdown," requir-
ing the overtime work of 10 extra men on each day "to
complete a normal days work " The statement added
that the drivers drove as they normally did.
One of the signatories, Luis Fuentes, did not work on
the 3 days involved. Two other drivers who signed the
statement , Jose Del Rio and Haskar Worthy, testified at
the instant hearing. Del Rio stated that when questioned
by Peter Martino and Joseph Martino, the shop steward,
he and the other drivers denied engaging in a slowdown
They were then asked to sign the statement if the slow-
down was Condento's fault and were told that they
would be disciplined if they did not sign. Del Rio stated
that Condento was driving a little slowly, but according
to the traffic, which was slightly congested. Del Rio
denied knowing whether Condento drove slowly in
order to waste time . Worthy testified that it was his
belief that if he did not sign the statement he would
thereby be agreeing with Condento-that the drivers
5 Condento's work record, which was placed in evidence at the arbi-
tration hearing , included a letter of reinstatement dated July 9, 1979, after
a discharge , with a note that "if at any further time we have any
problem whatsoever, concerning Condento, he will be terminated imme-
diately with no further consideration," and six warning letters from 1980-
1982 concerning such infractions as (a) unauthorized leaving of work, (b)
hitting and damaging cars with his van (c) unauthorized reassignment of
an employee, and (d ) bringing drivers to punch out at 3 15 instead of 3 30
17
caused the slowdown and, since Worthy did not engage
in a slowdown, he signed the statement. Worthy further
stated that he was not aware of any intentional slow-
down or wasting of time on April 12 through 14, and
that Condento's driving on those days was as usual
After the signatures were obtained, Lucciola wrote a
statement on the bottom of the sheet that "in view of the
above, Mr. Condento is hereby relieved of his position as
foreman and discharged."
4 The arbitration
Condento grieved his discharge, and an arbitration
hearing was held on October 14, 1982 Condento was
represented by an attorney from the Union. The issue, as
framed by the arbitrator, was whether Condento's dis-
charge was for just cause under the terms of the con-
tract. The arbitrator found that Condento was "dis-
charged for the cumulated effect of his infractions which
included the work slowdown and the argument with his
shop steward " The arbitrator found that (a) Condento
had been "repeatedly (and often) warned that his behav-
ior failed to meet acceptable standards, that he broke
company rules, regulations and policies, and that he was
a disruption within the Company organization." (b) At
the arbitration hearing Condento "admitted his participa-
tion in and the seriousness of the work slowdown." (c)
Condento "blew up" at the shop steward, discrediting
his testimony that he did not "blow up." (d) The shop
steward incident "when taken with a prior record of be-
havioral warnings . . gave the company cause for disci-
pline." The arbitrator stated that-
No company need tolerate nor accept conduct
which is improper, violative of reasonable rules, and
disruptive to the organization. It is unreasonable to
require a company to continue the employ of a
worker who performed as Mr Condento has.
The arbitrator concluded that Condento's discharge
was (a) for just cause under the contract and (b) reasona-
ble under the circumstances
Joseph Martino was not disciplined for his part in the
altercation with Condento, and Lucciola conceded that
he never disciplined anyone for using abusive language
Ill. ANALYSIS AND DISCUSSION
Deferral to Arbitration
In Ohn Corp., 268 NLRB 573 (1984), the Board adopt-
ed a new standard for implementing its Spielbergs policy
of deferring unfair labor practice proceedings to arbitra-
tors' decisions that are asserted to have resolved issues
subsequently presented to the Board The Spielberg
standards were reaffirmed. These require, for deferral,
that the arbitral proceedings appear to have been fair and
regular, all parties have agreed to be bound, and the de-
cision of the arbitrator is not clearly repugnant to the
purposes and policies of the Act. The new standard re-
jected both Suburban Motor Freight, 247 NLRB 146
p in 6 Spielberg Mfg Co, 112 NLRB 1080 (1955)
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1980), and Propoco, Inc., 263 NLRB 136 (1982). In the
interpretation the Board majorities in those cases placed
a further requirement for deferral, first enunciated in
Raytheon Co., 140 NLRB 883 (1963), that the arbitrator
consider the unfair labor practice issue.
Under the new standard, the Board will find that an
arbitrator has adequately considered the unfair labor
practice if (a) the contractual issue is factually parallel to
the unfair labor practice issue, and (b) the arbitrator was
presented generally with the facts relevant to resolving
the unfair labor practice. To the extent the contractual
and statutory standards of review of the unfair labor
practice issue differ, they should be weighed by the
Board in considering whether the arbitration award com-
ports with the Speilberg requirement that it not be clearly
repugnant to the Act, a standard requiring that the
award be "palpably wrong" or not susceptible to an in-
terpretation consistent with the Act. Furthermore, the
Board in Olin now placed on the party seeking to have
the Board ignore the determination of an abitrator, the
burden of demonstrating the defects in the arbitral proc-
ess or award, expressly overruling Suburban Motor
Freight, supra, to the extent that it provided for a differ-
ent allocation of burdens in deferral cases
The General Counsel argues that the deferral is not
appropriate because (a) the arbitrator did not adequately
consider the unfair labor practice issue and (b) the arbi-
tration decision is clearly repugnant to the Act.
As to the first issue, the General Counsel asserts that
the arbitrator did not consider whether (a) Condento was
engaged in protected concerted activity during his con-
versation with Steward Martino and, if so, whether his
conduct was so outrageous that he would forfeit his pro-
tected status, (b) Condento was disciplined for his union
or concerted activity of attempting to file a grievance,
(c) Respondent condoned abusive language by employ-
ees, or (d) the drivers' signatures on the statement accus-
ing Condento of the slowdown were voluntarily ob-
tained. The answer to these arguments is, and I find, that
pursuant to Olin, the arbitrator adequately considered the
unfair labor practice because the contractual issue is fac-
tually parallel to the unfair labor practice issue and the
arbitrator was presented generally with the facts relevant
to resolving the unfair labor practice. The factual ques-
tion presented to the arbitrator was coextensive with the
issues that would be considered by the Board in a deci-
sion on the statutory question-whether Condento was
properly suspended and discharged for the incident with
the shop steward.? Respondent and the General Counsel
are in agreement that the moving force behind the sus-
pension and discharge was the Condento-Steward argu-
ment. Of course, Respondent asserts that Condento over-
stepped his bounds in "degrading and verbally abusing"
the steward, while the General Counsel alleges that this
argument was caused by Condento's unsuccessful at-
tempt to persuade Martino to take action against Re-
spondent for the change in the work hours, and Con-
dento was thereby disciplined for his attempt to file a
grievance. Thus a very clear and identical issue was ad-
I The arbitrator's consideration of Condento's prior work record in
reaching his decision does not detract from this finding
dressed by the arbitrator-the propriety and legality of
Condento's discussion with the shop steward."
It also appears that the arbitrator was presented gener-
ally with the facts relevant to resolving the statutory
question-the unfair labor practice The facts involving
the steward incident were before the arbitrator.9 While it
is true that the arbitrator did not discuss the issue of Re-
spondent's condonation of abusive language in his opin-
ion, nevertheless, because the arbitrator "did hear the
facts on the issue [of the steward incident his] decision
effectively, although not explicitly, did decide the issue."
Chemical Leaman Tank Lines, 270 NLRB 1219 at fn. 3
(1984). Furthermore, it was unnecessary for the arbitra-
tor to consider work slowdown inasmuch as the arbitra-
tor referred several times in his opinion that Condento
admitted engaging in the slowdown and that the parties
had stipulated to that fact.
As to the second issue, it is also clear that the arbitra-
tor's award is not clearly repugnant to the purposes and
policies of the Act. Even assuming, arguendo, that Con-
dento was engaged in protected concerted activity by
virtue of his discussion with his shop steward, the arbi-
trator, after hearing all of the evidence, decided that Re-
spondent was justified in its discharge of Condento be-
cause of his prior work record and the incident with
Steward Martino. It has been held that an employer may
properly discharge an employee for obscene, profane re-
marks directed to another employee, notwithstanding
that such language was routinely used in the shop and
had been tolerated by management. Veeder-Root Co., 192
NLRB 973, 979, 980 (1981). See also NLRB v. Clark
Manor Nursing Home Corp., 671 F.2d 657, 662-663 (1st
Cir. 1982).
Accordingly, I find that there is no evidence that the
statutory and contractual issues are factually dissimilar or
that facts generally relevant to the unfair labor practice
issue were absent from the record made before the arbi-
trator. Additionally, the General Counsel has failed to
8 Condento engaged in protected concerted activities by asking wheth-
er (a) the change of hours was permitted by the contract, (b) Respondent
could take such action, and (c) the Union could do something about it
Such conduct, even taken alone, as I find Condento did, is concerted
Here, Condento questioned whether he was required to work until 5
p in -the new hours As the Supreme Court has stated
As long as the employee's statement or action is based on a reasona-
ble and honest belief that he is being, or has been, asked to perform a
task that he is not required to perform under his collective-bargain-
ing agreement, and the statement or action is reasonably directed
toward the enforcement of a collectively bargained right, there is no
justification for overturning the Board's judgment that the employee
is engaged in concerted activity, just as he would have had he filed a
formal grievance [NLRB v City Disposal Systems, Inc, 104 S Ct
1505 (1984)]
It is unnecessary to make a finding as to whether Condento said he
wanted to file a "grievance " "as long as the nature of the employee's
complaint is reasonably clear to the person to whom it is communicat-
ed. .." City Disposal, supra I accordingly find and conclude that Con-
dento was engaged in protected concerted activity in his inquiry to Stew-
ard Martino about the change of hours See also Interboro Contractors,
157 NLRB 1295 (1966), enfd 388 F 2d 495 (2d Cir 1967)
9 I cannot credit Condento's testimony that the only issue before the
arbitrator was that profanities he used or that his full conversation with
the steward was not related to the arbitrator It makes no sense that only
the obscenities were testified to Moreover , Respondent's witnesses
Joseph Martino and Smith testified that the full conversation between
Condento and the steward was testified to at the arbitration hearing
SHIMA'ZAKI .CORP 19
show that the arbitrator 's, award is clearly repugnant to On these findings of fact and conclusions of law and
the Act , i.e., that the -arbitrator 's decision is not suscepti - on the entire record , I issue the following recommend-
ble to an interpretation , consistent with the Act. ed I o
Thus, I shall defer to• the grievance arbitration award
and recommend dismissal ,of 'the complaint ORDER
CONCLUSIONS OF LAW
1 Respondent Shimazaki Corp. is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act
2. Deferral to the arbitrator 's award is appropriate.
3. Respondent has not engaged in the violations of the
Act as alleged in the complaint.
The complaint is dismissed in its entirety
10 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