Suburban Motor Freight, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1980

247 N.L.R.B. 146 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Suburban Motor Freight, Inc. and Ralph Singleton.
Case 25-CA-10138
January 8, 1980
DECISION AND ORDER
On April 18, 1979, Administrative Law Judge
Hutton S. Brandon issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, as
further explained herein, and to adopt his recommend-
ed Order.
The proceeding herein concerns Ralph Singleton, a
truckdriver-dockman, who was reprimanded and dis-
charged by Respondent in both April and July 1978,
only to be reinstated with reduced punishment on each
occasion pursuant to separate arbitral decisions ren-
dered by a local joint grievance committee. The
complaint alleges that Respondent disciplined Single-
ton for discriminatory antiunion purposes in violation
of Section 8(a)(3) and (1) of the Act. It is undisputed
that neither Singleton nor the union representing him
raised the unfair labor practice issue in either of the
two arbitration proceedings.
In defense of its conduct, Respondent has argued,
inter alia, that the Board should apply its Spielberg
principles,2 defer to the local joint grievance commit-
tee's decisions with respect to the discipline given
Singleton, and dismiss the complaint. The Administra-
tive Law Judge found that the facts relevant to the
deferral issue were indistinguishable from those pre-
sented in Electronic Reproduction Service Corporation,
et al. 3 wherein a Board majority held that it would in
the absence of "unusual circumstances" defer under
Spielberg to arbitration awards dealing with discharge
or discipline cases even where no indication existed as
to whether the arbitrator had considered, or had been
presented with, the unfair labor practice issue in-
'The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
Spielberg Manufacturing Company. I 12 NLRB 1080 (1955).
213 NLRB 758 (1974) (former Chairman Miller, former Member
Kennedy, and Member Penello; then-member Fanning and Membe; Jenkins
dissenting).
' See Max Factor & Co.. 239 NLRB 804 (1978); The Mason and Dixon
Lines. Inc.. 237 NLRB 6 (1978); The Kansas City Star Company. 236 NLRB
866 (1978).
247 NLRB No. 2
volved. He nonetheless found that deferral would be
inappropriate because recent decisions by the present
Board had signaled abandonment of the rule in
Electronic Reproduction.4 For reasons hereafter stat-
ed, we affirm the Administrative Law Judge's refusal
to defer.
The Board majority in Electronic Reproduction
rationalized its holding therein as a rule designed to
encourage contractual efforts at dispute settlement by
preventing multiple litigation of the same set of facts.
However economically praiseworthy the intent of that
rule may have been, its effect has been severely
criticized as an unwarranted extension of the Spielberg
doctrine and an impermissible delegation of the
Board's exclusive jurisdiction under Section 10(a) of
the Act to decide unfair labor practice issues.' We find
merit in such criticism. Our experience with Electronic
Reproduction has led to the conclusion that it pro-
motes the statutory purpose of encouraging collective-
bargaining relationships, but derogates the equally
important purpose of protecting employees in the
exercise of their rights under Section 7 of the Act. This
result provoked one critic to state:
The inference to be drawn from this case is that
although the contract and statutory issues are
different, the union's interests may not coincide
with the individuals', and the statutory issue was
in no way litigated or determined, the Board will
deprive these individual employees of their statu-
tory rights under the guise of deferring to and
encouraging arbitration. One's mind would need
to be very fertile, indeed, to conjure up a more
shocking sacrifice of individual rights on the altar
of institutionalism.'
The Board can no longer adhere to a doctrine which
forces employees in arbitration proceeding to seek
simultaneous vindication of private contractual rights
and public statutory rights, or risk waiving the latter.
Accordingly, we hereby expressly overrule Electronic
Reproduction and return to the standard for deferral
which existed prior to that decision.7 In specific terms,
we will no longer honor the results of an arbitration
proceeding under Spielberg unless the unfair labor
practice issue before the Board was both presented to
' See Stephenson v. N.L.R.B.. 550 F.2d 535 (9th Cir. 1977); Simon-Rose,
"Deferral under Collyer by the NLRB of Section 8(aX)(3) cases,'" 27 Lab. LJ.
201, 209-212 (1976); Schatzski, "Majority Rule, Exclusive Representation,
and the Interests of Individual Workers: Should Exclusivity be Abolished?,"
123 U. Penn. L. Rev. 897, 909 (1975).
' Schatzski, supra at 909, fn. 32.
'See Yourga Trucking, Inc., 197 NLRB 928 (1972) Airco Industrial
Gases-Pacific, a Division of Air Reduction Company. Incorporated. 195
NLRB 676 (1972); Raytheon Company. 140 NLRB 883 (1963); Monsanto
Chemical Company, 130 NLRB 1097 (1961).
Member Jenkins would in any event not defer to the decision of an arbitral
panel lacking "neutral members." See his dissenting opinions in Automobile
Transport,. Inc.. 223 NLRB 217 (1976), and Terminal Transport Company.
Inc., 185 NLRB 672 (1970).
146
SUBURBAN MOTOR FREIGHT, INC.
and considered by the arbitrator. In accord with the
rule formerly stated in Airco Industrial Gases, we will
give no deference to an arbitration award which bears
no indication that the arbitrator ruled on the statutory
issue of discrimination in determining the propriety of
an employer's disciplinary actions. In like accord with
the corollary rule stated in Yourga Trucking, we shall
impose on the party seeking Board deferral to an
arbitration award the burden to prove that the issue of
discrimination was litigated before the arbitrator.
In light of the foregoing, we affirm the Administra-
tive Law Judge's refusal to defer to the results of
arbitration proceedings wherein the unfair labor prac-
tice issues of discrimination were not litigated. We
likewise affirm the Administrative Law Judge's deter-
mination, based on his independent evaluation of the
facts before him, that Respondent was not unlawfully
motivated when it reprimanded and disciplined Ralph
Singleton in April and July 1978. We will therefore
dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is,
dismissed in its entirety.
MEMBER PENELLO, dissenting:
The decision to overrule Electronic Reproduction8
represents yet another step9 in the ill-considered
retreat from a fair, balanced, comprehensive, and
efficacious accommodation between public and private
mechanisms for the resolution of disputes. Once again,
a Board majority has rendered a decision which will
promote the proliferation of litigation and impede the
maturation of peaceable labor-management relations.
Once again, my colleagues have endorsed a policy
which tightens the bureaucratic fetters on employees,
unions, and employers alike, and so contravenes the
very purposes of the Act which that policy is meant to
serve. Once again, I must dissent.
The complaint herein alleges that Respondent
unlawfully discriminated against Ralph Singleton, the
Charging Party, when it reprimanded and discharged
him in both April and July 1978. The complaint issued
in spite of the fact that, after each disciplinary incident
213 NLRB 758 (1974).
See Douglas Aircraft Company, Component of McDonnell Douglas
Corporation, 234 NLRB 578 (1978) (Member Penello dissenting), enforce-
ment denied 609 F.2d 352 (9th Cir. 1979); Texaco. Inc. Producing Depart-
ment, Houston Division. 233 NLRB 375 (1977) (Member Penello dissenting);
General American Transportation Corporation. 228 NLRB 808 (1977) (Mem-
bers Penello and Walther dissenting); Filmation Associates, Inc., 227 NLRB
1721 (1977) (Members Penello and Walther dissenting).
"' Spielberg Manufacturing Company. 112 NLRB 1080 (1955).
cited, Singleton and his union representative voluntar-
ily litigated the employee's claim for reinstatement
with backpay in arbitration before a local joint
grievance committee. There is no record indication
whatsoever that the committee limited Singleton's
right to offer evidence on all issues related to the claim
presented in each arbitration proceeding. Singleton
was present during each proceeding and was well
aware each time of all facts subsequently introduced at
the unfair labor practice hearing in an attempt to
prove that Respondent was discriminatorily motivated
to discharge him. For no apparent reason, he did not
present those particular facts to the committee as
circumstances relevant to his firings. Based on the
evidence actually presented, the committee reduced
Singleton's first discharge to a final warning and
ordered his immediate reinstatement without backpay.
The committee likewise reduced his second discharge
to a final warning, but ordered his reinstatement only
after a 60-day suspensio..
It is undisputed that the proceedings of the Local
Joint Grievance Committee with respect to Singleton
were fair and regular, that all parties had agreed to be
bound by the committee's decisions, and that the
decisions made in Singleton's case were not repugnant
to the purposes and policies of the Act. In sum, the
original Spielberg 'o criteria for deferral to arbitration
decisions have been met. In addition, no "unusual
circumstances" warranted Singleton's failure to intro-
duce evidence of discrimination during the litigation
of his reinstatement claims in arbitration. I can
perceive no justification for permitting the relitigation
of the merits of those claims before the Board.
Contrary to my colleagues, I would adhere to the rule
in Electronic Reproduction and end the matter by
deferring to the results of arbitration.
The procedural rule in Electronic Reproduction
facilitated full effectuation of the Board's Spielberg
policy and derived its raison d'etre from principles
underlying both Spielberg and Collyer." Those
principles, expressed in the Act and endorsed by the
courts,'2 commit the Board to the purpose of further-
ing collective bargaining by encouraging parties to
resort to contractual means for the peaceful resolution
of industrial disputes. Such a purpose can be fatally
frustrated by permitting voluntary arbitration agree-
ments to be avoided through multiple litigation of the
same set of facts.
" Collyer Insulated Wire, A Gulf and Western Systems Coa. 192 NLRB 837
(1971). My views on deferral under both Collyer and Spielberg have recently
been restated at length in Roy Robinson, Inc. d/b/a Roy Robinson Chevrolet.
228 NLRB 828 (1977), and in the dissenting opinions of those cases cited in
fn. 9, supra.
" See, e.g., William E Arnold Company v. Carpenters District Council of
Jacksonville and Vicinity, et al., 417 U.S. 12, 16-17 (19'4); Carey v.
Westinghouse Co.. 375 U.S. 261, 270-272 (1963).
147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to the decision in Electronic Reproduction, it
had been the Board's practice in cases involving
alleged discrimination in employment not to defer to
an arbitration award under Spielberg unless the unfair
labor practice issue had been both presented to and
considered by the arbitrator. Experience led the Board
to conclude, however, that its practice invited parties
to withhold evidence of discrimination during arbitra-
tion about disciplinary action in order to gain a second
opportunity to challenge the same action during an
unfair labor practice proceeding. The consequent
bifurcation of litigation was particularly destructive of
the arbitral process in discharge and discipline cases,
where consideration of the basic contractual issue of
"just cause" ordinarily encompasses the unfair labor
practice issue of unlawful discriminatory cause.
Precisely because the Board's prior deferral policy
under rules defined in the Airco" and Yourga'4
decisions had the aforementioned deleterious effect on
arbitration and discouraged its use, the Board stated in
Electronic Reproduction that:
[W]e believe the better application of the underly-
ing principles of Collyer and Spielberg to be that
we should give full effect to arbitration awards
dealing with discipline or discharge cases, under
Spielberg, except when unusal circumstances are
shown which demonstrate that there were bona
fide reasons, other than a mere desire on the part
of one party to try the same set of facts before two
forums, which caused the failure to introduce
such evidence at the arbitration proceeding. '
By rejecting the rule just stated and returning to the
Airco/Yourga standard, my colleagues in the majority
have today essayed a decision which flies in the face of
Board experience, reintroduces the spectre of unwar-
ranted multiple litigation, and contravenes the pur-
pose of encouraging collective bargaining to which
they are committed by the Act. They nevertheless
maintain that their decision is justified because the
rule in Electronic Reproduction failed to serve ade-
quately the Board's statutory mandate to protect
individuals from unfair labor practices. I respectfully
disagree.
Although the majority has attributed chimerical
qualities to the rule in Electronic Reproduction, it is
their decision to depart from that rule which will have
monstrous effects. The existence of an arbitration
award, of course, does not oust the Board of its
jurisdiction to adjudicate claims of unfair labor
practices based on the same subject matter as the
award.'6 The Board has been quite able to insure that
individuals have had a fair and reasonable opportunity
to adjudicate any such claims by applying its Spielberg
criteria in a review of arbitration awards and by
permitting parties before the Board to demonstrate
any unusual circumstances which, under the rule in
Electronic Reproduction, justified their failure to
present evidence relative to alleged unfair labor
practices in arbitration proceedings. A return to the
Airco/Yourga rule will do nothing more to insure an
individual's "day in court" on unfair labor practice
issues. It will, in fact, do less. The failure to give
finality to arbitration decisions meeting Spielberg
criteria will inevitably discourage reliance on the
arbitral process and will thereby rob individuals of an
alternative to the Board, a private forum in which to
secure swift and fair determination of all facts and
issues arising from a disciplinary incident. Individuals
aggrieved by suspected discrimination in their disci-
pline will then have no alternative but to take their
place in line with the burgeoning masses of charging
parties before the Board with claims of discrimination
in discipline or discharge. These individuals will wait,
and wait, and wait for the protection of rights
promised them.
I do not kindly regard the prospect of justice
delayed. I would adhere to the rule in Electronic
Reproduction in an effort to preclude that prospect.
" Airco Industrial Gases-Pacific. a Division of Air Reduction Company.
Incorporated. 195 NLRB 676 (1972).
' Yourga Trucking Inc.. 197 NLRB 928 (1972).
" 213 NLRB at 762.
" N.L.R.B. v. Strong Roof d Insulating Company. 393 U.S. 357, 360-361
(1969).
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge' Tis
case was heard before me in South Bend, Indiana, on
January 25-26, 1979. The complaint in the case was issued
on October 31, 1978,' based upon a charge filed on August
25 by Ralph Singleton, herein referred to as Singleton, and
alleges violations of Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended, herein called the Act, by
Suburban Motor Freight, Inc., herein called Respondent or
the Company. More specifically, the complaint alleges that
Respondent discriminated against Singleton in violation of
the Act when it issued warnings to, and discharged,
Singleton both on April 6 and July 11. Respondent by
answer denied the commission of any unfair labor practices
under the Act.
A prefatory issue is presented as to whether the Board
should defer its processes to the decisions of the local joint
grievance committee set up under the grievance machinery
of Respondent and the Union's collective-bargaining agree-
ment, which committee considered and decided the validity
of Singleton's warnings and discharges under the collective-
bargaining agreement. Passing that issue, the ultimate issue
is whether the reprimands and discharges of Singleton were
' All dates are 1978 unless otherwise stated.
148
SUBURBAN MOTOR FREIGHT, INC.
based upon Singleton's union or other protected concerted
activities.
Upon the entire record,2 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
I. JURISDICTION
Respondent is an Ohio corporation with an office,
terminal, and place of business in South Bend, Indiana,
where it is engaged in the interstate transportation of goods
and freight. The complaint alleges, and the answer admits,
that, during the 12-month period prior to issuance of the
complaint, Respondent "shipped and delivered from its
South Bend terminal finished products valued in excess of
$50,000 to points outside the State of Indiana" and that,
during the same period, "received and delivered goods
valued in excess of $50,000 which were shipped to its
Southbend terminal from points outside the State of India-
na." The complaint further alleges, and again the answer
admits, that Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
Based on Respondent's admissions I find, as alleged, that
Respondent is an employer within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union 364, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, herein called the Union, is admitted by
Respondent to be, and I find it is, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. fMarerial Facts
Singleton was employed by Respondent as a truckdriver-
dockman beginning September 3, 1976. He was a member of
the Union which represented Respondent's employees and
had been a member for about 10 years. Respondent and the
Union were parties to a collective-bargaining agreement
effective April 1, 1976, to March 31, 1979, which provided
grievance machinery for the resolution of disputes. Under
the grievance machinery, on any disputes a majority decision
of the local joint grievance Committee, composed of employ-
er and union representatives, was final and binding on both
parties to the dispute.
It was Singleton's testimony that in July 1977 he learned
that David Hoedema, Respondent's terminal manager, had
'The unopposed motion of the General Counsel to correct the transcript
herein dated March 26, 1979, is hereby granted and received in evidence as
G.C. Exh. 28.
' The collective-bargaining agreement required a new employee to work 30
consecutive workdays within any 90-day period before he could be considered
a regular employee and placed on the seniority list. Signing a quit slip would
break the period of employment and forestall addition to the seniority list
although the employee might continue to work.
required csual employee Jerry Wilson to sign a "quit slip"
so that Wilson, who had been working as a casual employee,
could not be added to Respondent's seniority list of drivers.
Singleton testified that upon learning of this he talked to
Hoedema and complained that it was unfair to Wilson.
Singleton related that Hoedema told him to keep his nose
out of his business or the "same thing would happen to me."
Singleton testified he believed he told Hoedema at this time
that he would see what the Union had to say on the matter.
Thereafter, Singleton did complain at various times to
Robert McCuiston, business manager for the Union, regard-
ing Wilson's situation, both by telephone and personally
when McCuiston visited Respondent's terminal. It also
appears from the testimony of Jerry Wilson, who was called
by the General Counsel as a witness, that Wilson himself
personally complained to McCuiston beginning some time in
August 1977 after telling Hoedema he was going to the
Union on the matter.
The record is unclear as to the timing of the events that
followed. A consensus of the testimony of McCuiston,
Wilson, and Hoedema reveals that at some point in time,
McCuiston persuaded Hoedema to take Wilson on as a
regular employee provided he passed the driving test.
According to Wilson, a successful road test was mandatory
for full-time employment as a driver-dockman. 4 Wilson also
testified that Hoedema was angry about Wilson's having
gone to the Union behind Hoedema's back, and "sweared a
few words." Nevertheless, Hoedema administered the road
test to Wilson during the third week of November and failed
him. Wilson was then disqualified and terminated.
Singleton testified that he learned of Wilson's termination
upon returning from a vacation in early December 1977. He
then talked to Hoedema and complained that Hoedema was
not qualified to give the road test to Wilson. Again,
according to Singleton's testimony, Hoedema told Singleton,
as he had in the July 1977 discussion regarding Wilson, to
keep his nose out of it or the same thing would happen to
him. Singleton responded that he would see what the Union
had to say about the matter. It was shortly thereafter that
Singleton began to experience his troubles with Respondent.
On December 19, he received two letters of reprimand
signed by Hoedema and based upon incidents occurring on
December 14, 1977. One involved his being off his delivery
route, thus violating article 5, subsection C, of the "Uniform
Rules and Regulations" covering the Indiana conference of
Teamsters, a system of rules that Respondent applied to its
employees. Another involved his exceeding his lunch period
by 10 minutes, thereby violating article 3(d) of the same
rules.' Singleton's testimony about the claim that he was off
route is unclear but the substance of it is that he claimed he
was not off route. He did not deny that he may have
overstayed his lunch period. Nevertheless, he did not file a
formal grievance on either reprimand although he testified
' Wilson had been performing some driving work for Respondent during his
casual employment even without a road test.
' While the reprimand actually referred to subsec. 3(c) it is apparent that
subsec. 3(d) was intended instead. Subsec. (c) pertains to discourtesy to
customers while subsec. (d) pertains to theft or dishonesty of any kind. It was
Respondent's position that overstaying breaks or lunch periods constituted a
"theft" of worktime.
149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he did mention the matter to McCuiston, who said Respon-
dent did not have a leg to stand on.
Singleton received another letter of reprimand on Febru-
ary 13 for having an accident which he failed to report. The
General Counsel does not contend that this reprimand was
discriminatorily motivated.
Singleton received his next three reprimands on April 6,
and they were based upon events occurring on April 4 and 5.
The reprimand with respect to the April 4 incident was
based upon Singleton's having "messed up" a tractor cab
with grease in the course of dropping one trailer and
hooking up another. The reprimand letter cited this conduct
as a violation of article 2(g) of the work rules having to do
with the failure to keep the inside of a tractor cab clean.
Singleton was not advised about this infraction until he
received the other reprimand letters, but he did not
specifically deny in his testimony that he may have gotten
some grease in the cab.
The second reprimand letter Singleton received on April 6
was based on his failure to call into the terminal from his last
stop on April 5 as he had been instructed to do. The letter
cited this failure as a violation of article 3(f) of the work
rules relating to disobedience of orders. Singleton admitted
the instructions to call in and his failure to do so but sought
to excuse himself on the basis of the fact that he went on
back to the terminal to get rid of a load of damaged steel
which might have interfered with any other pick-ups.
Moreover, he claimed that his last stop was so close to the
terminal it was as easy to come back to the terminal as it was
to call in.
The third reprimand letter given Singleton on April 6 was
based upon observation of him by Terminal Manager
Hoedema and Respondent's salesman Richard Cavender at
Singleton's stop at the K-Mart store on his trip run to Niles,
Michigan, on April 5. The letter recited the fact that
Singleton had completed his unloading at that location at
12:30 p.m. and thereafter pulled his tractor to the south side
of the building and parked it from 12:32 until 1:40 p.m.,
despite the fact that he had only been on the job since 9 a.m.
and was not entitled, under Hoedema's interpretation of the
collective-bargaining agreement, to take a 30-minute lunch
break until after he had been on the job 4 hours." The letter
further related that Singleton's time at the K-Mart store was
"in excess of allowable time," and constituted "dishonesty"
under article 3(d) of the work rules about which Singleton
had been warned before. The letter concluded by advising
Singleton that he was dismissed.
Singleton grieved his discharge before the local joint
grievance committee, which on April 10 reduced the
discharge letter to a "final letter of warning" and ordered
him reinstated on April 11 without backpay. Pursuant to the
committee's decision, Hoedema issued Singleton another
letter, dated April 12, advising him that the discharge letter
I The local cartage agreement, art. 48, provided that the drivers were
entitled to a meal period between the 4th and 6th hour after beginning work.
The language appears to make this a right to be exercised at the dver's
election, although Hoedema obviously viewed it as requiring drivers to eat
only between the 4th and 6th hours. He testified that this was the way the
agreement was applied unless employees had special permission otherwise.
' Hoedema testified that it was not unusual for him to follow his drivers and
observe their work when he had time. This testimony was corroborated by
Cavender, who testified that he had followed a number of drivers with
had been reduced to a final letter of warning but further
advising him that any further incidents of like nature could
result in his discharge.
Following his reinstatement, Singleton worked without
incident until July 10. On that date Hoedema, again with
salesman Cavender, followed Singleton on his route' and
observed him stop at a restaurant, the Villa, in the vicinity of
New Carlisle, Indiana, at 11:35 a.m., where he stayed until
12:05 p.m. Hoedema and Cavender made no further attempt
to follow Singleton after he left the Villa Restaurant. By
letter dated July II1, Hoedema again discharged Singleton,
citing the fact that Singleton was observed taking a 30-
minute lunch break at a time when he was not entitled to
one, since he had only started work at 9 a.m. The discharge
letter stated that the 30-minute break was considered as
"dishonesty, stealing time," about which he had been
warned before, and thus was in violation of article 3(d) of the
work rules.
Singleton again grieved his discharge and this time the
local joint grievance committee again reduced his "letter of
discharge" to a "final letter of warning." However, the
committee gave Singleton "penalty time off' until Septem-
ber II and required him to pay his own health and welfare as
well as pension contributions during the time off.
B. Contentions of the Parties
It is the General Counsel's contention that Singleton was
reprimanded in December, April, and July because of his
support of Jerry Wilson and Wilson's efforts to obtain full-
time employment with Respondent. In support of this
contention, the General Counsel notes that the first repri-
mand issued to Singleton in December 1977 shortly followed
his complaint to Hoedema about Wilson's termination and
after Hoedema had told Singleton to keep his "nose out of
it" or the "same thing" could happen to him. While the
December reprimands occurred more than 6 months prior to
the filing of the charge and cannot therefore constitute
violations of the Act, they may be considered as background
evidence reflecting the discriminatory nature of the subse-
quent reprimands issued to Singleton. As further evidence
that the reprimands issued to Singleton were discriminatory
the General Counsel points out on the basis of Hoedema's
admissions that the reprimands issued to Singleton in
December 1977 were the first issued to Singleton during his
employment. Moreover, Singleton's reprimands of Decem-
ber and April were the only reprimands Hoedema ever
issued which were unrelated to accidents, except for one
reprimand issued to driver Douglas Mackler in August 1977
for insubordination.
The timing of the April reprimands and discharge of
Singleton is urged by the General Counsel to also show the
discriminatory basis for Respondent's actions. In this regard,
Hoedema. Other driver witnesses, including Jerry Wilson and Douglas
Mackler, also testified that drivers were followed from time to time. It also
appears from Hoedema's testimony, supported by that of Clay Prather, an
employee in Respondent's terminal operations, that Hoedema and Prather
had followed Singleton on his route on one unspecified date between April I
and July 10, but observed nothing irregular, presumably because Singleton
was aware that he was being followed, as he indicated in statements on a CB
radio. Accordingly, I credit Hoedema, supported as he is on this point, and
find that it was not unusual for Hoedema to follow drivers.
150
SUBURBAN MOTOR FREIGHT, INC.
the General Counsel relies upon evidence showing that
Respondent ultimately had to hire Jerry Wilson on April 24.
According to Wilson's testimony, which I credit in this
regard, he was hired after his repeated complaints to
McCuiston and McCuiston's discussions with Hoedema and
arrangements for another road test. Wilson further testified
that he knew in early April that he would be returning to
work for Respondent and gave his regular employer a 2-
week notice of his quitting.'
The General Counsel urges that Hoedema clearly associ-
ated Singleton with Wilson's reinstatement efforts. Thus, in
response to a question to Hoedema by Respondent's counsel
as to whether he knew that Singleton helped Wilson "get on
the seniority list," Hoedema replied, "[T]hey were friends,
and I assumed that is the way it happened."
Finally, the General Counsel argues that the reprimands
issued to Singleton are so ill founded that they must be
considered pretextua! and designed to conceal Respondent's
real motivation; i.e., to retaliate against Singleton because of
his support of Wilson. While the General Counsel concedes
that Singleton overextended his lunch break at K-Mart on
April 5, he nevertheless contends that Hoedema in following
Singleton that particular day was motivated by resentment
toward Singleton's role in forcing Wilson's return to work.
The other two reprimands issued to Singleton on April 6 are
classified by the General Counsel as "afterthoughts" de-
signed to build a case against Singleton. The July 10 incident
was clearly pretextual, according to the General Counsel,
because the collective-bargaining agreement did not require
drivers to take their lunch breaks between their 4th and 6th
hour after starting work, and, contrary to Hoedema's
testimony, there was no Respondent rule that drivers had to
take their lunch breaks at such time unless they had
permission otherwise. Moreover, Singleton, by the admis-
sions of Hoedema and Cavender, did not stay at the Villa
Restaurant beyond the 30 minutes allowed for lunch breaks.
Another driver, John Lukacheski, took his lunch break with
Singleton but was not reprimanded under the guise that he
had permission to do so from either Hoedema or the
dispatcher. Under these circumstances, according to the
General Counsel, the disparate treatment of Singleton
becomes obvious.
In response to Respondent's argument noted below that
the Board should defer its processes to the decisions of the
local joint grievance committee with respect to Singleton's
discharges in accordance with the principles of Spielberg
Manufacturing Company, 112 NLRB 1080 (1955), the
General Counsel contends that the unfair labor practices
involved in the discharges were not considered or decided by
the grievance committee, and the committee's resolutions
thus should not be honored.9 See Raytheon Company, 140
NLRB 883 (1963); Airco Industrial Gases-Pacific, a Divi-
sion of Air Reduction Company, Incorporated. 195 NLRB
" Wilson was given a second driving test by Respondent on April 12. This
lime the test was administered by Ron Armsted, who rated Wilson as
unsatisfactory. Nevertheless, according to Wilson, McCuiston told him when
he went to work (doing dockwork) that he would be allowed to practice
driving for Respondent. Hoedema corroborated this, testifying that after the
April hiring Wilson was used mostly on the dock but was allowed to practice,
and he ultimately passed the driver's test administered by driver Douglas
Mackler a month to 6 weeks later
' rhe transcript of the proceedings before the local joint grievance
676 (1972); Yourga Trucking, Inc., 197 NLRB 928 (1972).
The General Counsel would distinquish from the instant
case the Board's decision in Electronic Reproduction Service
Corp., et al., 213 NLRB 758 (1974), where the Board held at
762 that it would defer to arbitration awards under Spielberg
principles "except when unusual circumstances are shown
which demonstrate that there were bona fide reasons, other
than a mere desire on the part of one party to try the same
set of facts before two forums, which caused the failure to
introduce such evidence at the arbitration hearing." The
General Counsel argues, in effect, that the ignorance of
Singleton and his union representative, McCuiston, as to the
existence of an unfair labor practice issue at the time of the
presentation of Singleton's grievances to the joint committee
constituted a "bona fide reason" for not raising the issue
before the body so as to preclude application of the
Electronic Reproduction precedent. In any event, the Gener-
al Counsel contends that the viability of Electronic Repro-
duction as guiding precedent is questionable in light of
subsequent Board decisions, specifically Fikse Bros., Inc.,
220 NLRB 1301 (1975); The Kansas City Star Company, 236
NLRB 866 (1978); Max Factor & Co., 239 NLRB 804
(1978)."'
Respondent argues that the Spielberg principle is fully
applicable to the resolution of Singleton's discharges by the
local joint grievance committee. Respondent notes that the
proceedings before the committee were fair, that the parties
had agreed to be bound by the decision of the committee,
and that the results, a 3-day and a 60-day suspension, were
not repugnant to the purposes and policies of the Act.
With respect to the merits of the case, Respondent argues
simply that the Jerry Wilson matter was not a significant
concern to Respondent and would not have engendered
animosity on the part of Respondent, Hoedema in particu-
lar, against Singleton, whose involvement in the Wilson
matter was minimal and not even known to Respondent.
Respondent contends, in effect, that Singleton was a "low
productivity" employee and that his discharges were for
cause.
C. Discussion and Conclusion
In Spielberg Manufacturing Company, supra, the Board
set forth the following criteria, all of which must be met
before the Board will defer to the decision of an arbitral
body: (I) the proceeding must be fair and regular; (2) all
parties must agree to be bound; and (3) the decision must not
be repugnant to the purposes and policies of the Act.
Spielberg is viable Board law and is still considered and
applied where appropriate. See, e.g., Sea-Land Service, Inc
240 NLRB 1146 (1979); St. Luke's Memorial Hospital, Inc.,
240 NLRB 1180 (1978); Max Factor & Co., supra. The
burden is upon Respondent to show that all the requisite
committee in both April and July were submitted into evidence as Jt. Exh. .A
reading of those transcript reveals, and I conclude, that the unfair labor
practice issues involved herein were not in fact raised before the committee.
'" The General Counsel points out that, even when Singleton filed the
charge in the instant case, he was still urging only a contract violation in his
discharge as shown by the language of the charge. It was, according to the
General Counsel's brief, only the Region's "investigative expertise which
brought to light Respondent's unlawful actions in this case."
151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elements to its application have been satisfied. John Sexton
& Co., A Division of Beatrice Food Co., 213 NLRB 794, 795
(1974). In the instant case it would appear that Respondent
has satisfied its burden of showing that the original criteria
for application of Spielberg have been met.
The argument for deferral here also finds support in the
Board's holding in Electronic Reproduction Service, supra.
There the Board held, members Fanning and Jenkins
dissenting, that deferral would be warranted where the
unfair labor practice issue could have been raised before the
arbitrator but was not, and thus the arbitrator was not called
upon to decide the unfair labor practice issue. In the instant
case, neither the Union or Singleton raised the unfair labor
practice issue before the local joint grievance committee."
Accordingly, it would appear that strict application of the
Electronic Reproduction precedent would require deferral to
the decision of the local joint grievance committee with
respect to Singleton's discharges.
I find unconvincing General Counsel's efforts to distin-
guish the Electronic Reproduction case on the bais that the
Union and Charging Party here, unlike in that case, did not
intentionally withhold the unfair labor practice issue from
the committee. In the Electronic Reproduction case, the
Board specifically pointed out that it would consider as
"unusual circumstances" justifying a refusal to defer to an
arbitration award any failure to present evidence to the
arbitrator due to the fact that the evidence was "newly
discovered" or "unavailable" at the time of the arbitration.
It thus indicated that it would reject arguments against
deferral where, as here, there is no showing that the evidence
upon which the unfair labor practice issue is based was not
newly discovered or unavailable at the time of the arbitra-
tion. Here, Singleton, who was present during the presenta-
tion of both his grievances on his discharges, was well aware
of all the facts he now urges to show that Respondent was
discriminatorily motivated in the discharges.
The Electronic Reproduction case has drawn critical court
comment. See N. Stephenson v. N.L.R.B., 550 F.2d 535 (9th
Cir. 1977); Dreis & Krump Manufacturing Company, Inc. v.
N.L.R.B., 544 F.2d 320 (7th Cir. 1976). Moreover in Max
Factor & Co., supra at fn. 3, the Board cited with apparent
approval the court's critical notation in the Stephenson case
to the effect that the Board should not defer to an arbitration
decision when the arbitrator has not considered the statutory
issues. Also in the same footnote in the Max Factor case,
Member Murphy's disagreement with Electronic Reproduc-
tion was also noted, as it had been previously noted in the
Kansas City Star Company, supra. In my opinion this clearly
signals a return by the present Board majority to the holding
in Monsanto Chemical Company,130 NLRB 1097 (1961),
and that line of cases, including Raytheon, supra, Airco
Industrial Gases, supra, and Yourga Trucking, supra, which
require a showing that the arbitrator considered the statuto-
ry issues before deferral under Spielberg principles could be
further considered.
Accordingly, and since the statutory issues were not
considered by the grievance committee in the instant case, I
" There is no contention here that the local joint grievance committee did
not constitute an arbitration body meeting Spielberg's standards of fairness.
The Board has previously held such committees, though operating without
conclude that deferral to the decision of that body would not
be appropriate under the circumstances of this case.
Turning to the merits of the case, the only evidence of
animus on the part of Respondent towards Singleton because
of his union or protected activities is found in the statements
attributed to Hoedema by Singleton when Singleton com-
plained to Hoedema about the treatment accorded Wilson.
According to Singleton, Hoedema both in July and Decem-
ber 1977 told Singleton to "keep his nose out of Hoedema's
business or the same thing would happen to Singleton." I
was not impressed with Singleton's demeanor as a witness
and I find it difficult to believe that Hoedema would have
made almost identical statements to Singleton on two
separate occasions several months apart. Moreover, the
"threat" that the "same thing" would happen to Singleton is
vague in the context of what Singleton was complaining
about. Thus, in the first instance he was complaining about
Wilson having to sign a "quit slip" so that he could not
obtain seniority and permanent employment. How could the
threat that the "same thing" could happen to Singleton be
applicable when Singleton was already a permanent employ-
ee? On the second occasion, in December 1977, Singleton
was by his own testimony objecting to Hoedema's qualifica-
tion to administer a driving test to Wilson. Again the threat
was attributed to Hoedema that if Singleton did not keep his
nose out of Hoedema's business the "same thing" would
happen to Singleton. The "same thing" would appear to be
only in reference to the administration of a driver test, which
Singleton, as a regular driver, was not subject to.
Singleton's memory was by his own admission hazy.
Understandably, he testified with respect to the July 1977
statements attributed to Hoedema, "It's been so long, I can't
recollect everything." In keeping with this uncertain recol-
lection, Singleton couched his testimony in regard to
Hoedema's July 1977 statements in terms of "I think," and
prefaced his testimony that he told Hoedema in the same
conversation that he was going to the Union on the matter
with "I believe."
The reliability of Singleton's recollection is further suspect
in view of the fact that he went through two grievances
before the local joint grievance committee without "recall-
ing" that his discharges may have related to the threats he
attributed to Hoedema based upon his complaints concern-
ing Wilson's employment. Even when he filed the charge in
the instant case, Singleton couched the violation alleged in
terms of a breach of the collective-bargaining agreement. It
was only "investigative expertise," as the General Counsel's
brief refers to it, which prompted Singleton's recollection of
statements made to him by Hoedema 9 months to a year
earlier which now provide the basis for the alleged violations
of the Act here involved.
Contrary to Singleton's testimony, Hoedema testified he
never threatened or reprimanded Singleton for any involve-
ment in the Wilson matter. He could not recall any
conversation with Singleton regarding Wilson in which he
told Singleton to mind his own business, nor could he recall
any conversation with Singleton at all regarding Wilson.
Hoedema's lack of recollection appeared to me to be sincere,
neutral arbitrators, sufficient to meet Spielberg's standards. See Terminal
Transport Company. Inc., 185 NLRB 672 (1970).
152
SUBURBAN MOTOR FREIGHT. INC.
and his credibility was generally enhanced by his disinterest
at the time of the hearing since his employment by
Respondent had been terminated in November under cir-
cumstances which would undercut any allegiance to Respon-
dent.
In view of all the foregoing, I credit Singleton only to the
extent his testimony is not specifically denied by Hoedema.
Thus, I conclude that Singleton did complain to Hoedema
about Wilson's treatment both in July and December 1977
and that Hoedema did in fact tell Singleton to mind his own
business or to keep his nose out of it. I do not credit that
portion of Singleton's testimony wherein he attributes to
Hoedema any "threats" to do the "same thing" to Singleton
as was done to Wilson.
Whether or not Hoedema issued any threats to Singleton,
there is little on this record, aside from timing alone, to
establish that the December 1977 reprimands issued to
Singleton were based upon discriminatory reasons under the
Act. Singleton's testimony about his being off route was
vague, but he admittedly had made his last stop before lunch
at Notre Dame University (which was in north South Bend)
and had proceeded from there to Mishawaka (east of South
Bend) before going back to Respondent's terminal which,
according to Hoedema's uncontradicted testimony, was in
southwest South Bend. Further, Singleton did not specifical-
ly deny that he had overstayed his lunch break as the
reprimand letter had claimed. It is to be noted also that
Singleton did not formally grieve those reprimands. Accord-
ingly, and despite the timing of the reprimands, I conclude
that a valid basis for the reprimands existed and that they
were not discriminatorily motivated.
There is even less to support the conclusion that the April
reprimands issued to Singleton and the discharge based
thereon were discriminatorily motivated. So far as this
record shows, Singleton had made no further complaints to
Hoedema about Wilson's situation after December 1977. It
is true that Singleton had continued to urge McCuiston to
act on Wilson's behalf, but by Singleton's own admission
other employees had also vigorously complained to McCui-
ston on the same subject when he visited Respondent's
terminal. While the General Counsel argues a tie-in from a
timing standpoint between Respondent's agreement to give
Wilson another driver's test and to ultimately hire him as a
regular employee, there is little record evidence to establish
that Respondent had agreed to the retest of Wilson before
Singleton's discharge. The events giving rise to Singleton's
reprimands and discharge took place on April 4 and 5.
Wilson was not given his second driver qualification test
until April 12, 1 week later. While Wilson's testimony has it
that he was told a few days prior to April 12 that he would
be retested, and while it may be inferred that there was some
discussion between Hoedema and McCuiston prior to the
agreement, the record does not clearly establish that such
discussions took place prior to April 4 and 5. Thus, I find
that the timing of Singleton's April reprimands and dis-
u While there's no documentary or statistical evidence of Singleton's "low
productivity," Singleton admitted that after he was reinstated in April his
fellow employees met with him regarding their belief he was "sloughing off."
This was corroborated by employees Terry Klein, Joe Colvin, Ron Armsted,
and Douglas Mackler, the union steward. Armsted and Colvin also identified
Singleton as a chronic complainer and nitpicker who sought strict application
of the collective-bargaining agreement to all working conditions. Neverthe-
charge in relation to Wilson's retesting and hiring is not
significant.
Moreover, examination of the circumstances upon which
the April reprimands and discharges are based does not
support a conclusion that they were based on unlawful
reasons. Singleton did not deny that he got grease on the cab
of the truck as one of the reprimands alleged, nor did he
deny that he had failed to call in to the terminal before
coming in as he had been directed to do. And finally, he did
not deny that he had spent almost an hour stopped at the K-
Mart store in Niles, Michigan, as his discharge letter had
claimed. Singleton contended that this delay was caused by
his having to fix his "speed handles" on his gear shift, which
were loose. Yet, as his discharge letter stated, and without
any contradiction from Singleton, he did not report any
breakdown.
That Hoedema and Cavender followed Singleton on his
Niles run does not in itself suggest that Respondent was
making a special attempt to find fault with him. As
previously noted and found, it was not unusual for Hoedema
to follow drivers on their routes.
It is true that Hoedema in his testimony confused the
reasons for the April reprimands and discharges by relating
that his main problem with Singleton was "low productivi-
ty,"'2 and that there was no way to discharge Singleton for
low productivity under the collective-bargaining agreement.
Nevertheless, he also testified that the April reprimands and
discharge of Singleton would have been effectuated even if
Singleton had been a good employee. This contradiction
tends to support a conclusion that the bases for the
reprimands and discharge were pretextual, but falls short of
compelling the conclusion that Hoedema was seeking to
conceal an unlawful reason for his action with respect to
Singleton. I am not convinced that Hoedema was so
motivated because of: (1) the absence of significant evidence
of animosity towards Singleton because of his involvement in
the Wilson matter other than that credited portion of
Singleton's testimony regarding Hoedema's admonition to
him months earlier to keep his nose out of Hoedema's
business; (2) the absence of evidence clearly showing that
Hoedema was persuaded by McCuiston to give Wilson
another test and employment at a time prior to Singleton's
April discharge; (3) the absence of evidence that Singleton
was in fact, to Respondent's knowledge, involved in Wilson's
April employment efforts;" and (4) the April reprimands
and discharge had a basis in fact.
Upon consideration of the foregoing, I conclude that the
General Counsel has not established by a preponderance of
the evidence that the April reprimands and discharge of
Singleton were motivated by a desire of Respondent to
retaliate against Singleton because of any efforts on his part
through the Union on behalf of Wilson. I therefore find that
the April reprimands and discharge of Singleton did not
violate Section 8(a)(3) and (1) of the Act.
less, Singleton never iled a grievance on any matter other than his April and
July discharges and there is no evidence, aside from his conversations with
Hoedema about Wilson, which indicates that Singleton gave Respondent any
"trouble" with respect to the Union-Respondent agreement.
" McCuiston credibly testified that Singleton was never refe.red to in his
discussions with Hoedema regarding Wilson's testing and employment.
153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There remains for consideration the July 11 discharge of
Singleton. Of all the incidents for which Singleton was
reprimanded or discharged the July incident appears to be
the most innocuous and therefore the most susceptible to a
conclusion that it was pretextual. This is because a contrac-
tual provision providing for lunch breaks between the 4th
and 6th hour after beginning work appears to allow the
driver to elect to take his lunch at another time. Moreover,
although Hoedema claimed that lunch breaks were not
allowed outside the 2-hour period specified in the contract
without special permission, it is clear from the testimony of
drivers Joe Colvin and Terry Klein, whom I credit, that they
personally took lunches outside the 2-hour period without
repercussions from management. However, aside from Col-
vin's unsubstantiated and therefore unaccepted claim that it
was "understood" that he made lunch stops outside the
specified period, it was not shown that Respondent was
aware that the drivers made such stops. I note also that
Respondent's April discharge letter to Singleton had clearly
indicated to Singleton Hoedema's position that he was not to
take a lunch break prior to the completion of his 4th hour of
work. And even though the local joint grievance committee
had ordered Singleton's reinstatement following the April
discharge, the discharge letter was allowed to stand as a
"final letter of warning." Under these circumstances, Single-
ton must have been aware of how Hoedema was interpreting
the collective-bargaining agreement regarding lunch breaks.
The fact that another driver, John Lukacheski, also
stopped for lunch at the Villa Restaurant on July 10 during
the same time Singleton was there and was not disciplined
also suggests some disparate treatment. That suggestion is
dispelled, however, by my conclusion, based upon Hoede-
ma's testimony, which I credit in this regard, that Lukache-
ski had special permission to stop for lunch at the time he
did.
Considering that Singleton's July discharge was remote in
time from any involvement of Singleton in the Wilson
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
situation (by July 10, Wilson had already been employed 2 %
months), and since I have already found that the April
reprimands and discharge of Singleton were not discrimina-
torily motivated, I conclude that the July discharge likewise
was not discriminatorily motivated. Accordingly, I find that
the General Counsel has failed to establish by a preponder-
ance of evidence that Respondent violated Section 8(a)(3)
and () of the Act with respect to the July discharge of
Singleton.
Having found that Respondent's April and July actions
with respect to Singleton did not violate Section 8(a)(3) and
(1) of the Act as alleged in the complaint, I shall recommend
that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent, Suburban Motor Freight, Inc., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters Local Union 364, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not committed any unfair labor
practices within the meaning of Section 8(a)(3) and (I) of the
Act with respect to its issuance of reprimands to, and
discharges of, Ralph Singleton in April and July 1978.
4. Respondent has engaged in no unfair labor practices
violative of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER' 4
The complaint is dismissed in its entirety.
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
154