Stroh Brewery Co.

National Labor Relations Board - Board Decisions

Jan 23, 1985

273 N.L.R.B. 1604 (N.L.R.B. 1985)

1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Stroh Brewery Company a/lc/a Joseph Schlitz
Company and Thomas L. Reynolds. Case 11-
CA-10906
23 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBER
HUNTER AND DENNIS
On 20 July 1984 Administrative Law Judge
Steven M. Charno issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief, and the Respondent filed an answering
brief.
The Board has considered the decision and the
record in light of the exceptions 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
STEVEN M. CHARNO, Administrative Law Judge. In
response to a charge filed May 31, 1983, a complaint was
issued on August 2, 1983, alleging that The Stroh Brew-
ery Company a/k/a Joseph Schlitz Brewing Company'
(Respondent) had violated Section 8(a)(1) and (3) of the
National Labor Relations Act, by discharging its em-
ployee Thomas L. Reynolds. Respondent's answer denies
the commission of any unfair labor practice.
A hearing was held before me at Winston-Salem,
North Carolina, on October 17, 18, and 19, 1983. 2 Briefs
were filed by the General Counsel and Respondent
under due date of November 23, 1983 By unopposed
motion dated July 2, 1984, Respondent seeks to reopen
the record in this case in order to offer into evidence
certain relevant documents; that motion will be granted
and the documents received in evidence.3
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation licensed to do business in
North Carolina, which is engaged in the production of
The Respondent was incorrectly identified in the complaint as "Jos
Schlitz Brewing Company" Pursuant to Respondent's unopposed motion
at the hearing, the complaint and caption were amended to reflect Re-
spondent's correct name
2 The General Counsel's unopposed motion to correct the transcript is
granted, transcript corrections appear in the appendix [The appendix has
been omitted from publication ]
3 The supplemental award dated May 15, 1984, in Joseph Schhtz Brew-
ing Co, Nos 1737 WST and 1738 WST, is identified as R Exh 10, the
opinion and order in Chauffeurs, Teamsters, and Helpers Local 391 v The
Stroh Brewery Co, No C-83-698-G (MD NC, filed Apr 11, 1984), as
R Exh II The remaining documents appended to the motion were re-
ceived in evidence at the hearing as part of R Exh 5
beer at a facility in Winston-Salem. During the 12
months preceding issuance of the complaint, a represent-
ative period, Respondent, in the course and conduct of
its business within North Carolina, received goods
valued in excess of $50,000 from points outside the State
and shipped products valued in excess of $50,000 to
points outside the State. It is admitted, and I find, that
Respondent is an employer engaged in commerce within
the meaning of the Act
Chauffeurs, Teamsters and Helpers Local Union No.
391, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Union) is admitted to be, and I find is, a labor
organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
On November 24, 1982, Reynolds was suspended in-
definitely pending a hearing concerning acts of insubor-
dination which he had allegedly committed on that date.
After a hearing before the joint labor-management multi-
plant grievance committee, and a deadlocked decision by
that committee, Respondent discharged Reynolds for in-
subordination and another pending charge—excessive ab-
senteeism. The Union grieved Respondent's action. Pur-
suant to article VII, section 2, of the collective-bargain-
ing agreement then in effect between Respondent and
the Union, the grievance was submitted to binding arbi-
tration. On February 23, 1983, a formal hearing was held
before Arbitrator Herbert V. Rollins at which Respond-
ent and the Union were represented by counsel and a
formal evidentiary record was compiled.
A The Arbitrator's Decision
On June 2, 1983, the arbitrator issued a decision direct-
ed to a single issue: Was there just cause to discharge the
grievant for excessive absenteeism and/or insubordina-
tion?4 The findings set forth below were taken from the
arbitrator's decision.
Prior to his discharge, Reynolds had been employed
for 14 years by Respondent at its Winston-Salem plant as
an electrician and had never been faulted for his work in
that capacity. In addition to his duties as an electrician,
he had at various times, including the period from April
1982 until his discharge, been the Union's chief steward
at the plant and had shown himself to be "an extremely
able union representative"
The collective-bargaining agreement in effect between
Respondent and the Union authorizes stewards to spend
"necessary" time performing union duties, which are
identified as investigating grievances, conferring with su-
pervisors, and filing formal written grievances. The
agreement further authorizes the chief steward to "inves-
tigate, present and process grievances on the company
property without loss of time or pay during regular
working hours."
4 The arbitrator found that, since Respondent had initially treated
Reynolds leniently under its program of progressive discipline for absen-
teeism, it could not thereafter bring him to book for absences it had pre-
viously failed to take into account Accordingly, the afbitrator concluded
that discharge constituted excessive discipline for Reynolds' demonstrat-
ed absenteeism
273 NLRB No. 200
I
JOSEPH SCHLITZ CO. 1605
Prior to his discharge, Reynolds and Respondent had
"differences" over the amount of time Reynolds was au-
thorized to spend on union business. While it conceded
that the collective-bargaining agreement allowed stew-
ards to spend whatever time was necessary to handle
grievances, Respondent was dissatisfied with the fact that
Reynolds spent over 92 percent of his time on union
business and wanted to monitor and control what it con-
sidered to be an abuse of union business time. In order to
provide "some sort of time spent on union business," Re-
spondent initiated a form, entitled "Shop Steward
Report" in October 1982. The form, which was to be
filled out by the steward's supervisor, required informa-
tion concerning who had requested the steward, who
was to be seen, the location of the steward's business, the
nature of that business, and the approximate time the
steward would be gone. On many occasions, Reynolds
made known his objections to the form and referred to
the procedure as "chicken shit." When called to a prob-
lem in the plant, Reynolds continually insisted that he
could not and would not "guesstimate" the amount of
time that would be involved.
Arguments concerning use of the form and the amount
of time required for union business continued, and Reyn-
olds finally met with James Becknell, the acting plant
manager, concerning the matter on November 23, 1982.
Reynolds asked that use of the form be discontinued, and
Becknell responded that he would discuss it with the
then absent plant manager The following day there was
another meeting about the problem between Becknell,
Reynolds, and Reynolds' steward, Eddie Hale. At that
time, Becknell informed Reynolds that the latter would
still be required to furnish the information needed to
complete the form
Shortly after the meeting, Reynolds and Hale were ob-
served working on union business by Reynolds' supervi-
sor, Ted Holcomb. When Holcomb stated that Reynolds'
authorized release time of 30 minutes had expired and
that he should return to work immediately, Reynolds re-
fused. Holcomb then apprised Harold Mann, 5 the assist-
ant manager of engineering, of the situation. Mann ap-
proached Reynolds and asked if the latter was refusing
to return to work. Reynolds replied that he would return
when he finished his union business, which consisted of
writing up notes of the meeting with Becknell. Reynolds
eventually returned to the shop but stated that he would
have to leave again to conduct further union business.
When Reynolds was asked how long he would require
to check the grievance box and see stewards, he replied
that he did not know who had to be seen or the length
of time he would be gone. Because Reynolds would not
provide the information required to complete the shop
steward form, Holcomb refused to release him. Reynolds
called over Hale, and Mann thereafter joined the three in
Holcomb's office.
After further discussion about Reynolds' refusal to fur-
nish the information required on the shop steward form,
Mann again told Reynolds to return to work. Reynolds
replied that he was not refusing to return to work but
5 Due to an error by the reporter who prepared the transcript of the
arbitration hearing, Mann's name was transcribed as "Mahan"
needed to continue his union business. Reynolds, who
was considerably taller and heavier than Mann, became
angry, threw his safety glasses on Holcomb's desk, ad-
vanced toward Mann "in a belligerent manner" with
clenched fists, and stated, "I'm tired of this shit" and
"I'm going to do my job as a union representative."
Mann, who was concerned with being struck, stepped
back and pointed to the timeclock, a sign to punch out.
Although it was clear that Mann had raised his hand
without any intention of hitting Reynolds, the latter re-
sponded, "[D]on't you raise your hands at me or I'll
knock you on your ass—you son of a bitch, I'll pop
you."
Mann then explained to Reynolds that he was suspend-
ed indefinitely and told him to punch out. The order was
confirmed with Hale and Reynolds responded that, al-
though he was suspended as an employee, he was a
union official and was not going to leave. Mann replied,
"Tom, you either leave, or we will get you out of here."
Reynolds stated, "[Thu better get a bunch, because I'm
not leaving." The police were called and, in their pres-
ence, Mann repeated his order to leave and Reynolds, his
refusal. Finally, the police persuaded Reynolds to leave.
As he walked out, Reynolds said, "I'm not leaving be-
cause you told me to, I'm leaving because the officers
asked me to."
Ultimately, the arbitrator found that (1) Reynolds' re-
fusal to return to work after the meeting with Becknell
when ordered to do so by Holcomb was "an intentional
act of insubordination," (2) Reynolds' threat to Mann
was "a serious act of insubordination," and (3) Reynolds'
"misconduct during the meeting constituted further acts
of insubordination." Based on these findings, the arbitra-
tor sustained Reynolds' discharge. Because Reynolds has
never been faulted for his work as an electrician, because
his "major fault was his total disregard for the orderly
operation of the plant and his insubordinate conduct
while he conducted Union business" 7 and because Reyn-
olds has high blood pressure directly related to his work
as a steward, the arbitrator added a proviso that Reyn-
olds be permitted to return to work if he gave up his ac-
tivities as a steward.5
6 While noting that he was not required to rule on the question of
whether the collective-bargaining agreement had been violated by Re-
spondent's restrictions on the time used by stewards for union business,
the institution of the shop steward form, or the requirement that stewards
supply information relating to union business, the arbitrator noted that
the Union should have grieved the issues if it felt that Respondent was in
error—"there was no need to constantly bicker about it"
7 The arbitrator further described this conduct as numerous "hostile
and disruptive" confrontations between Reynolds and Respondent's man-
agement in which Reynolds indulged a "propensity to engage in sarcasm,
use foul language in a threatening tone of voice, threaten supervisors
with physical assault, and refuse reasonable orders"
8 The ordering paragraph was as follows
The company's orders of discharge are sustained with the proviso that
the grievant shall have the option, if he so elects, to return to his job
solely as an electrician by giving written notice delivered to the
company, within 15 days of the date of this award, requesting return
to his job solely as an electrician If gnevant elects to exercise this
option he shall be reinstated and while so reemployed be permanent-
ly enjoined from engaging in any union business or activities of any
type in any of the plants, properties, or business locations of the em-
ployer or its associated or successor companies He will not be
Continued
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Arbitrator's Supplemental Award
On June 14 and 17, 1983, Reynolds attempted to notify
Respondent that he wished to return to work, but he did
not accept the condition imposed by the arbitrator and
agree to give up his union post. Respondent rejected
both attempts. On June 21, counsel for Respondent
wrote the arbitrator and requested that he reconsider his
initial award and sustain the discharge without a proviso
offering Reynolds an opportunity to return to work. On
June 30 counsel for the Union wrote the arbitrator re-
questing reformation of the initial award to reinstate
Reynolds with full backpay and no restriction on union
activity. On July 8 the arbitrator replied to both counsel
in a letter which contained the following statement:
At the hearing before me the record clearly estab-
lished that Mr Reynolds had been guilty of miscon-
duct, sufficiently serious to warrant his discharge.
Accordingly, I sustain the discharge.
The letter also stated that, in view of Reynolds' position
that he would not comply with the award as originally
framed (which was described as an attempt to "circum-
vent my findings and award"), the discharge would be
sustained without a proviso allowing Reynolds to return
to work. The letter concluded with the following dis-
claimer "My decisions were not made with reference to
any matter related to the National Labor Relations Act
or any provisions thereof"
The Union subsequently brought suit pursuant to Sec-
tion 301 of the Act in the United States District Court
for the Middle District of North Carolina. In that pro-
ceeding, the Union sought severance of the portion of
the proviso barring Reynolds from engaging in further
union activities. In an April 11, 1984 opinion and order,
the arbitrator's initial award was found by the district
court to be invalid and unenforceable, and it was re-
manded to the arbitrator "for further proceedings not in-
consistent with this Order"; the "second" award in the
letter July 8, 1983, was held to be beyond the arbitrator's
jurisdiction. On May 15, 1984, the arbitrator issued a
supplemental award which sustained Reynolds' discharge
without including a proviso permitting his reemploy-
ment.
C. Discussion
At the outset of the hearing, Respondent moved that
the Board defer to the arbitrator's award. After hearing
argument, I denied the motion because "the arbitrator
did not specifically consider the conduct which is alleged
to be an unfair labor practice." See Raytheon Co., 140
NLRB 888 (1963), enf. denied 326 F.2d 471 (1st Or
1964). The question of deferral to the arbitrator's deci-
sion was again raised on brief by both Respondent and
the General Counsel. Because of intervening decisions by
the Board, I believe it appropriate for me to reconsider
my earlier ruling and to address the question of deferral
at this time.
barred from filing and pursuing any grievance on his own behalf for
problems in which he may personally become involved after his
return to work
In Spielberg Mfg. Co., 112 NLRB 1080 (1955), the
Board held that it would defer to an arbitration award
where the proceedings appeared to have been fair and
regular, all parties had agreed to be bound by the award,
and the decision of the arbitrator was not "clearly repug-
nant" to the purposes and policies of the Act. No ques-
tion has been raised as to the fairness or regularity of the
proceedings before the arbitrator, and the collective-bar-
gaining agreement between Respondent and the Union
provides that both parties are bound by the award. Ac-
cordingly, it must be determined whether the arbitrator's
decision, as modified by the supplemental award,9
"clearly repugnant" to the Act
The Board recently clarified the standard for deferral
to arbitration awards in Olin Corp., 268 NLRB 573
(1984), where it held:
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. In this respect, differences, if
any, between the contractual and statutory stand-
ards of review should be weighed by the Board as
part of its determination under the Spielberg stand-
ards of whether an award is "clearly repugnant" to
the Act. And, with regard to the inquiry into the
"clearly repugnant" standard, we would not require
an arbitrator's award to be totally consistent with
Board precedent. Unless the award is "palpably
wrong," i.e , unless the arbitrator's decision is not
susceptible to an interpretation consistent with Act,
we will defer
Employing these guidelines, I am forced to conclude
that the arbitrator adequately considered the unfair labor
practice alleged in the complaint, notwithstanding his ex-
plicit disclaimer of reliance upon the National Labor Re-
lations Act The contractual issue before the arbitrator
was the ultimate issue before the Board in this proceed-
ing, that is, was Reynolds properly discharged for insub-
ordination? The arbitrator had before him all relevant
evidence relating to Reynolds' union activities, including
evidence of the fact that Reynolds' insubordination oc-
curred while he was transacting union business. Notwith-
standing that evidence, the arbitrator found that Reyn-
olds was insubordinate in threatening Mann without
provocation and in refusing to obey repeated orders to
return to work and, subsequently, to leave the premises
Given the issue before the arbitrator, the scope of the
evidence he considered and the decision he ultimately
reached, I cannot conclude that the amended award is
"palpably wrong."
9 Obviously, had the arbitrator's initial award not been modified pursu-
ant to the mandate of the district court, the conditional restraint on
Reynolds' union activity would have directly contravened the principles
underlying the Act See Cessna Aircraft Co, 220 NLRB 873, 875 (1975)
This conclusion holds true even though insertion of the offending proviso
in the initial award appears to have been motivated by the arbitrator's
compassion for Reynolds as an individual
JOSEPH SCHLITZ CO. 1607
On brief, the General Counsel argues that the award is
repugnant to the Act because the arbitrator "ignored the
longheld Board principle that, absent opprobrious con-
duct, any discharge based in whole or in part on the con-
duct of an employee during a grievance meeting would
be a discharge for protected concerted activities and
therefore a violation of the Act." The relevant cases
cited by the General Counsel in support of this argument
all involve situations in which an employee was pro-
voked into insubordinate conduct by an employer's
unfair labor practices. 10 I find such authority less than
persuasive here, where it is not alleged that Respondent
committed any unfair labor practice other than Reyn-
olds' discharge. Indeed, Reynolds' repeated refusals to
obey his supervisors' orders, his longstanding method of
comporting himself while conducting union business, the
obscene and physical nature of his threat to Mann, the
absence of any provocation by Respondent, and the lack
of formality surrounding Reynolds' concurrent protected
activity support the arbitrator's explicit conclusion that
Reynolds had crossed the line which separates accepta-
ble and unacceptable behavior. Such a conclusion is not
repugnant to the Act. See Atlantic Steel Co., 245 NLRB
814, 816 (1979).
10 See NLRB v. M & B Headwear Co., 349 F.2d 170 (4th Cir. 1965); E
I. du Pont de Nemours, 263 NLRB 159 (1982); Sea-Land Service, 240
NLRB 1146 (1979)
For the foregoing reasons, I find that the arbitrator's
decision is not repugnant to the Act. Accordingly, I con-
clude that it will effectuate the purposes of the Act to
give conclusive effect to the grievance award, and I shall
therefore dismiss the complaint in its entirety.
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 within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not, as alleged, violate Section
8(a)(I) and (3) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
1. Respondent's motion dated July 2, 1984, is granted,
the record reopened, Respondent's Exhibits 10 and 11
are received, and the record is closed.
2. The complaint is dismissed in its entirety.
"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.