United Parcel Service of Ohio

National Labor Relations Board - Board Decisions

Oct 15, 1991

305 N.L.R.B. 433 (N.L.R.B. 1991)

433
305 NLRB No. 44
UNITED PARCEL SERVICE OF OHIO
United Parcel Service of Ohio and Daniel P. Kane.
Case 21–CA–27855
October 15, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On February 1, 1991, the Regional Director issued
a complaint and notice of hearing alleging that the Re-
spondent has engaged in certain unfair labor practices
affecting commerce within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Na-
tional Labor Relations Act. Subsequently, the Re-
spondent filed its answer, admitting in part and deny-
ing in part the allegations of the complaint, and raising
an affirmative defense. As an affirmative defense, the
Respondent contends that an arbitrator has already
found that the employees named in the complaint were
not terminated in violation of the collective-bargaining
agreement between the Union and the Respondent, or
the Act, and that the Board should defer to the arbitra-
tor’s finding and dismiss the complaint.
Thereafter, on April 8, 1991, the Respondent filed
with the Board in Washington, D.C., a Motion for
Summary Judgment/Dismissal, with exhibits attached,
renewing its contention that the Board should defer to
the arbitrator’s decisions regarding the discharges.
On April 19, 1991, the Board issued an order trans-
ferring the proceeding to the Board and Notice to
Show Cause why the Respondent’s motion should not
be granted. On April 29, 1991, the General Counsel
filed a response, arguing that the Board should not
defer because the arbitrator did not measure the
discriminatees’ conduct by the appropriate Board
standard and, therefore, his awards are palpably wrong
and not worthy of deferral. In the alternative, the Gen-
eral Counsel contends that there are sufficient issues of
fact and law warranting resolution before an adminis-
trative law judge.
On May 20, 1991, the Charging Party filed a brief
in opposition to the Motion for Summary Judgment
contending that the Board should not defer because the
arbitrator’s awards are palpably wrong, that the Union
did not present the statutory issues to the arbitrator,
and that the Board should not apply the general rules
governing deferral to arbitrators’ awards set forth in
Olin Corp., 268 NLRB 573 (1984), in this case. In
particular, the Charging Party urges the Board to reject
Olin’s requirement that the party contesting deferral
has the burden of proving the deferral criteria are not
met. In this regard, the Charging Party argues, as to
the Charging Party himself, that he is a union dissident
who cannot count on the Union to fully and effectively
advocate his position.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on the Motion for Summary Judgment
The facts here are essentially uncontested. The
Charging Party, as a shop steward, prepared grievances
concerning the Respondent’s installation of a metal de-
tector at the facility. These grievances, with nine signa-
tures including those of the Charging Party and another
steward, were submitted to the Respondent. At a series
of individual grievance meetings, two employees with-
drew their grievances. The other seven employees were
ultimately terminated for dishonesty and falsification
of their grievance documents and were not reinstated.
Grievances over these terminations went to arbitration.
The issue presented to the arbitrator in each case by
mutual agreement of the Union and the Respondent
was ‘‘Did the company violate the Labor Agreement
or the National Labor Relations Act when it dis-
charged the Grievant?’’
The arbitrator denied each of the grievances and
upheld the terminations. With respect to the Charging
Party, the arbitrator found that he ‘‘deliberately made
false orchestrated statements on his Grievance Report
and then persisted in them through the grievance meet-
ing until he realized his falsehoods had been de-
tected.’’ The arbitrator concluded that ‘‘there is no ab-
solute protection in the National Labor Relations Act
or in the collective bargaining agreement for a Union
Steward who deliberately’’ engages in such conduct.
The arbitrator similarly found as to the other grievants
that they had made false statements on their grievance
reports and at grievance meetings in order to establish
a basis for backpay to which they were not entitled,
and that their conduct was not protected under the col-
lective-bargaining agreement or the Act.
We find it appropriate to defer to the arbitration
awards upholding the terminations in accordance with
Olin Corp., 268 NLRB 573 (1984). In that case, the
Board set forth the standards under which it would
defer to an arbitrator’s award, consistent with the
standards set forth in the Spielberg Mfg. Co. decision
(112 NLRB 1080 (1955)). The Board held it would
defer where the proceedings appear to have been fair
and regular, all parties have agreed to be bound, the
decision of the arbitrator is not clearly repugnant to the
Act, and the arbitrator has adequately considered the
unfair labor practice issue. As to the last standard, the
Board stated that it would find that an arbitrator had
adequately considered the unfair labor practice if the
contractual issue is factually parallel to the unfair labor
practice issue and the arbitrator was presented gen-
erally with the facts relevant to resolving the unfair
labor practice. The Board also explained what it in-
tended by the ‘‘clearly repugnant’’ standard. It would
434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 To the extent that the Charging Party’s argument that Olin should
not be followed because the Charging Party grievant cannot count
on the Union to adequately represent him can be construed as an as-
sertion that the proceedings are not fair and regular, we find that
there is inadequate evidence in the record to support such an asser-
tion. It is well established that the Board will not defer where the
interests of the alleged discriminatees are in conflict with those of
their union. See, e.g., Dresser Industries, 289 NLRB 90 (1988);
Tubari Ltd., 287 NLRB 1273 (1988); and Aristo Foods, 198 NLRB
543 (1972). However, the Charging Party has not met his burden of
showing such a conflict here beyond his unsupported assertions that
the Union was hostile to him, nor has he shown any irregularity in
the Union’s handling of the Charging Party’s grievance. Indeed the
Union took the grievance to arbitration and appeared to represent the
Charging Party in the same manner as the other grievants.
In this connection, we disagree with the Charging Party’s assertion
that it is inappropriate to apply the burdens established by Olin to
the facts here. The Board in Olin reasoned that the party seeking to
have the Board ignore the arbitrator’s determination should have the
burden of affirmatively demonstrating the defects in the arbitral
process or award. We do not see any facts here justifying a depar-
ture from that reasoning.
not require that an arbitrator’s award be totally con-
sistent with Board precedent, but would only find an
award to be deficient under that standard if it is not
susceptible to an interpretation consistent with the Act.
Finally, the Board placed the burden on the party seek-
ing to have the Board reject deferral to show that these
standards have not been met.
In this case, the first deferral criterion is satisfied
because there is no evidence that the grievance pro-
ceedings were not fair and regular1 Similarly, we find
that all parties have agreed to be bound, in the absence
of evidence or argument to the contrary.
We also find that the General Counsel and Charging
Party have failed to establish that the awards are clear-
ly repugnant to the purposes and policies of the Act.
The arbitrator essentially determined that the conduct
for which the employees at issue were terminated was
not protected under the Act. Contrary to the arguments
of the Charging Party, this determination is clearly
consistent with Board precedent holding that conduct
associated with filing grievances is not absolutely pro-
tected, but instead can lose the Act’s protection under
certain circumstances. See, e.g., Roadmaster, 288
NLRB 1195 (1988). Even the General Counsel con-
cedes that conduct associated with the filing of griev-
ances can lose its protection if a false claim is made
in bad faith, but urges that the arbitrator made no such
determination here. We reject the General Counsel’s
argument that the arbitrator’s award is palpably wrong
in this respect. Although the arbitrator did not use the
words ‘‘bad faith,’’ the arbitrator’s treatment of the
Charging Party’s conduct of ‘‘deliberately’’ making
‘‘false orchestrated statements’’ and similar treatment
of the other grievants’ conduct are clearly consistent
with findings of bad faith. Thus, there is no indication
that the arbitrator’s resolution of these grievances is re-
pugnant to the Act.
With regard to the final deferral criterion referred to
in Olin, as stated previously, in order to determine
whether the arbitrator adequately considered the unfair
labor practice, the Board must decide both if the con-
tractual issue is factually parallel to the unfair labor
practice issue and if the arbitrator was presented gen-
erally with the facts relevant to resolving the unfair
labor practice. Further, we again observe that the bur-
den rests with the General Counsel and Charging
Party, as the parties opposed to deferral, to establish
that either of these standards has not been met. After
careful review of the record, we find that it does not
establish that the statutory and unfair labor practice
issues are not factually parallel or that the facts rel-
evant to resolving the unfair labor practice issue were
not presented generally to the arbitrator.
In examining the discharges here, the arbitrator was
specifically presented with the issue of whether the ter-
minations were violative of the Act. Moreover, in re-
solving that issue and finding that the Charging Party
was discharged for cause, the arbitrator specifically
considered and rejected the Union’s contention that be-
cause the Charging Party was a union steward, he was
protected by the Act against discipline for anything he
might have done in connection with processing the
grievance. Similarly, as to the other grievants, the arbi-
trator specifically determined that the Act provides no
protection for employee interference with a company
grievance investigation. In this regard, the arbitrator
concluded that the Respondent committed no unfair
labor practice under the Act when it discharged these
employees. Thus, the arbitrator was specifically pre-
sented with the question of whether the grievants were
discharged for activity protected under the Act and
concluded that they were not. Therefore, given the
manner in which the issues here were framed, pre-
sented to, and resolved by the arbitrator, it is clear that
the contractual and unfair labor practice issues were
factually parallel and that he was presented generally
with the facts relevant to determining whether the Re-
spondent’s conduct constituted an unfair labor practice.
Moreover, the arbitrator actually made a determination
that the Respondent’s conduct was not unlawful under
the Act.
Accordingly, we shall defer to the resolution of the
grievances by the arbitrator, grant the Respondent’s
Motion for Summary Judgment, and dismiss the com-
plaint.
ORDER
The complaint is dismissed.