Verizon, Inc.

National Labor Relations Board - Board Decisions

Mar 9, 2015

362 NLRB No. 24 (N.L.R.B. 2015)

362 NLRB No. 24
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Verizon New England, Inc. and International Broth-
erhood of Electrical Workers, Local 2324, AFL–
CIO. Cases 01–CA–044539, 01–CA–044556, and
01–CA–044612
March 9, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On November 15, 2011, Administrative Law Judge Jo-
el P. Biblowitz issued the attached decision. The Gen-
eral Counsel and the Charging Party each filed excep-
tions and a supporting brief, and the Respondent filed an
answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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 only
to the extent consistent with this Decision and Order.1
The complaint alleges that the Respondent violated
Section 8(a)(1) of the National Labor Relations Act by
telling employees to remove informational picket signs
from the windows of their personal vehicles parked on its
property. An arbitration panel found that the display
constituted picketing in contravention of the “no picket-
ing” provision of the parties’ collective-bargaining
agreement. On a stipulated record, the judge deferred to
the arbitration award and dismissed the complaint. The
General Counsel and the Charging Party except, arguing
that the arbitration award is “clearly repugnant” to the
Act. Unlike the judge and our dissenting colleague, we
agree that the award is clearly repugnant to the Act for
the reasons discussed below.2 We further find that the
Respondent’s directive violated Section 8(a)(1) of the
Act.
Facts
The Respondent and the Charging Party were parties
to a collective-bargaining agreement, effective through
August 2, 2008, that covered the Respondent’s facilities

1 We shall substitute a new notice to conform to the Order as modi-
fied and in accordance with our decision in Durham School Services,
360 NLRB No. 85 (2014).
2 In Babcock & Wilcox Construction Co., 361 NLRB No. 132
(2014), the Board modified its postarbitral deferral standard, but decid-
ed that it would not apply the modified standard in pending cases. Id.,
slip op. at 14. Accordingly, we decide this case under the standard
adopted in Olin Corp., 268 NLRB 573 (1984).
in Massachusetts and Rhode Island, including its West-
field, Springfield, and Hatfield, Massachusetts facilities
where this case arose. Since 1977, the parties have in-
cluded the same “No Strike” provision in their collective-
bargaining agreement. That provision, Article G10, pro-
vides, in pertinent part:
The Union agrees that during the term of this Agree-
ment, or any extension thereof, it will not cause or
permit its members to cause, nor will any member of
the Union take part in any strike of or other interference
with any of the Company’s operations or picketing of
any of the Company’s premises . . . . [Emphasis added.]
Despite that contractual provision, the Charging Party
had a long-established practice of engaging in ambulato-
ry informational picketing at or near the Respondent’s
facilities, most commonly when the contract was nearing
expiration. Consistent with this practice, in March 2008,
the Charging Party distributed to bargaining unit em-
ployees 28” x 22” picket signs, bearing the slogans,
“Verizon, Honor Our Existing Contract” and “Honor Our
Contract.” Also in March, ambulatory picketing began at
some of the Respondent’s Massachusetts facilities, but it
was not slated to begin until April at the Westfield,
Springfield, and Hatfield facilities.
A few weeks prior to the start of informational picket-
ing at those three facilities, employees began displaying
their picket signs in the windows of their personal vehi-
cles parked on the Respondent’s property while they
were at work. The Respondent instructed the employees
to remove the signs, and the employees complied. No
employee was disciplined for displaying a sign, nor is
there evidence that the displays interrupted or otherwise
disrupted the Respondent’s operations.
The Charging Party filed unfair labor practice charges
alleging that the Respondent violated Section 8(a)(1) of
the Act by prohibiting employees from displaying the
signs in their vehicles. The Regional Director deferred
the cases to the parties’ contractual grievance and arbitra-
tion process under Collyer Insulated Wire, 192 NLRB
837 (1971).
The Charging Party’s grievance alleged that the Re-
spondent violated the contract by requiring the employ-
ees to remove the signs.3 The grievance was heard by a

3 In support of its grievance, the Charging Party cited article
G9.03(b) of the contract and contended that the Respondent’s decision
to order the signs removed was arbitrary or in bad faith. Article
G9.03(b) states:
If such grievance concerns any other determination of the Company
involving the exercise of discretion, such determination shall not be
set aside by the Board of Arbitrators unless it shall find it to have been
made arbitrarily or in bad faith.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
three-member arbitration panel. In a two to one vote, the
panel denied the grievance, finding that the display of
signs in employees’ vehicles amounted to picketing in
violation of article G10. The award stated:
By any other name, Union members who place protest
signs in their cars to inform the public of its contract
concerns with [the Respondent] are engaged in picket-
ing. While the Union argues that placing signs in cars
is not picketing because doing so only communicates a
message, that is precisely what picketing is: to inform
the public of the Union’s concerns. Picketing does not
have to be a sign on a stick.
In support of its conclusion, the award cited article G10,
“several contract clauses,”4 and two extrinsic sources—
namely, a book on picketing from 18975 and a labor dic-
tionary from 1949.6 Expressly declining to rule on the statu-
tory issue, the award stated: “Whether the [Respondent’s]

4 The award did not clearly identify the contract clauses. But the
award quoted articles G7 (Union Bulletin Boards) and G11 (Manage-
ment Rights) as relevant provisions of the parties’ agreement. Those
two articles state as follows:
ARTICLE G7 (Union Bulletin Boards)
G7.01 The Company agrees to furnish, without charge, space at bar-
gaining unit locations to erect free access bulletin boards of a size ap-
proximately 30 by 30 inches. Bulletin boards will be furnished by the
Union and erected by the Company. The number to be erected and
the locations at which erected shall be mutually decided upon by au-
thorized Union officials and Company representatives.
G7.02 Bulletin boards are to be used by the Union for posting notices
concerning official Union business, or other Union related matters,
provided that if anything is posted on these bulletin boards that is con-
sidered by the Company to be controversial or derogatory to any indi-
vidual or organization the Union agrees to remove such posted matter
on demand and if it falls or refuses to do so, such matter may be re-
moved by the Company.
ARTICLE G11 (Management Rights)
G11.01 Subject only to the limitations contained in this Agreement
the Company retains the exclusive right to manage its business, in-
cluding (but not limited to) the right to determine the methods and
means by which its operations are to be carried on, to assign and direct
the work force and conduct its operations in a safe and effective man-
ner.
5 W.J. Shaxby, THE CASE AGAINST PICKETING 11 (1897). The
award quotes the following passage from this source: “During a recent
strike a small boy sat on a fence near the works and ate chocolates,
whistling in the gladness of his heart between each toothsome morsel.
In reality he was a ‘picket,’ and was marking and counting the men
who entered the works.”
6 P.H. Casselman, THE LABOR DICTIONARY 362 (1949). Although
the award cites this source to support its contention that displaying the
signs constituted picketing, it fails to quote the dictionary’s definition,
which actually states: “[P]icketing: The stationing of men for observa-
tion or in order to coerce or to threaten, to intimidate or halt or to turn
aside against their will those who would go to and from the picketed
place to do business, or to work, or to seek work therein, or in some
other way to hamper, hinder or interfere with the free dispatch of busi-
ness by the employer.”
demand that the signs be removed from employees’ vehi-
cles infringed employees’ Section 7 rights is a question that
we do not have the authority to resolve.”
The judge deferred to the arbitration award under
Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin
Corp., 268 NLRB 573 (1984). The General Counsel and
the Charging Party argued that the award was clearly
repugnant to the Act because the placing of the signs in
vehicles was protected by Section 7 of the Act and there
was no “clear and unmistakable” waiver of the right to
engage this activity. The General Counsel and the
Charging Party further argued that the employees’ con-
duct did not constitute “picketing” because the stationary
display of signs in their vehicles lacked the necessary
element of confrontation, citing Carpenters Local 1506
(Eliason & Knuth of Arizona, Inc.), 355 NLRB 797, 802
(2010). The judge found that these arguments, even if
correct, failed to show that the award was repugnant to
the Act. He agreed with the Respondent that “[t]here is
nothing in Board law that prevents an arbitrator from
interpreting the word ‘picket’ in a collective bargaining
agreement provision prohibiting picketing more broadly
than the Board would in an unfair labor practice case not
involving such a provision.”
Discussion
Under Spielberg, supra, the Board defers to an arbitra-
tion award when the proceedings appear to have been fair
and regular, all parties have agreed to be bound, and the
decision of the arbitrator is not clearly repugnant to the
purposes and policies of the Act. The Board also condi-
tions deferral on the arbitrator having adequately consid-
ered the unfair labor practice issue, which is satisfied if
(1) the contractual 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. Olin Corp., supra at 574. Deferral, how-
ever, will be found inappropriate under the clearly re-
pugnant standard where the arbitration award is “‘palpa-
bly wrong,’ i.e., the decision is not susceptible to an in-
terpretation consistent with the Act.” Id.
Here, the only deferral factor in dispute is whether the
arbitration award is “clearly repugnant” to the Act. For
the reasons discussed below, we agree with the General
Counsel and the Charging Party that the award is “clearly
repugnant,” and we reverse.
Section 7 of the Act gives employees the right to en-
gage in concerted activities for the purpose of collective
bargaining or for other mutual aid or protection. The
Board and the courts have made clear that, absent special
circumstances, employees’ display of prounion signs in
their car windows on an employer’s property is protected
concerted activity under the Act. See, e.g., International
3
VERIZON NEW ENGLAND, INC.
Business Machines Corp., 333 NLRB 215, 219–221
(2001) (finding 8(a)(1) violation where supervisors told
employees that displaying prounion signs on their vans
parked in employee lots violated company policy), enfd.
31 Fed.Appx. 744 (2d Cir. 2002); Firestone Tire & Rub-
ber Co., 238 NLRB 1323, 1323 (1978) (finding 8(a)(3)
and (1) violation where respondent disciplined employee
who refused to remove prounion signs affixed to his car
while parked in employee lot), enfd. mem. 651 F.2d
1172 (6th Cir. 1980); Coors Container Co., 238 NLRB
1312, 1319 (1978) (finding 8(a)(1) violation where re-
spondent promulgated and enforced rule prohibiting em-
ployees from displaying boycott sign inside a truck while
on company premises), enfd. 628 F.2d 1283 (10th Cir.
1980); see also District Lodge 91, Int’l Assn. of Machin-
ists v. NLRB, 814 F.2d 876, 879 (2d Cir. 1987) (approv-
ing Board’s conclusion that employee engaged in pro-
tected activity when he displayed campaign sign on his
van parked in employee lot).
It is also well settled that unions may waive certain
Section 7 rights. See, e.g., Lear Siegler, Inc., 293 NLRB
446, 447 (1989). Such waivers of statutory rights, how-
ever, “are not to be lightly inferred, but instead must be
‘clear and unmistakable.’” Georgia Power Co., 325
NLRB 420, 420 (1998) (citing Metropolitan Edison Co.
v. NLRB, 460 U.S. 693, 708 (1983)), enfd. mem. 176
F.3d 494 (11th Cir. 1999); see also 110 Greenwich Street
Corp., 319 NLRB 331, 334 (1995). “[E]ither the con-
tract language relied on must be specific or the employer
must show that the issue was fully discussed and con-
sciously explored and that the union consciously yielded
or clearly and unmistakably waived its interest in the
matter.” Georgia Power Co., supra at 420–421. The
“clear and unmistakable” waiver standard has been ap-
plied by the Board for over 50 years and “has become
deeply engrained in the administration of the Act and in
the conduct of collective bargaining.” Provena St. Joseph
Medical Center, 350 NLRB 808, 811–812 (2007). Alt-
hough the Board has not required that arbitrators apply
this standard as the Board would, in determining whether
an award is repugnant to the Act, the Board will review
“all the circumstances, including the contractual lan-
guage, evidence of bargaining history and past practice
presented in the case.” Southern California Edison Co.,
310 NLRB 1229, 1231 (1993), affd. sub nom. Utility
Workers Local 246 v. NLRB, 39 F.3d 1210 (D.C. Cir.
1994); see also Motor Convoy, 303 NLRB 135, 136
(1991) (finding that the difference between the standard
used by an arbitration panel and the Board’s statutory
standard, while not dispositive, is relevant to whether an
award is repugnant). Applying these principles, we find
that the award is clearly repugnant to the Act.
The award concluded that the Charging Party, by
agreeing to the limitations on “picketing” in article 10,
waived its right to post signs in the windows of unattend-
ed vehicles parked on the Respondent’s property. The
award, however, is devoid of any reasoning to support its
conclusion that the conduct constitutes picketing other
than stating that picketing “inform[s] the public of the
Union’s concerns” and “does not have to be a sign on a
stick,” citing a nineteenth century book about picketing
and a mid-twentieth century labor dictionary.7 The
award cited nothing in article G10 or elsewhere in the
contract, nothing in the parties’ bargaining history, and
no other extrinsic evidence to indicate that the parties
either intended or anticipated that article G10 would cov-
er the type of conduct at issue here.8 See Engelhard
Corp., 342 NLRB 46, 48 (2004) (finding it “hard to see”
how union clearly and unmistakably waived its right to
engage in informational picketing at shareholders’ meet-
ing away from worksite where parties did not contem-
plate the waiver issue arising in the “unusual context” of
that case), enfd. 437 F.3d 374 (3d Cir. 2006). Indeed, the
Charging Party’s long established practice of engaging in
informational picketing shortly before contract expiration
further demonstrates that the parties did not understand
the conduct at issue to be encompassed by the provision
barring picketing.9

7 Moreover, the arbitration award’s citations to the 1891 book and
1949 labor dictionary—apparent references to industry custom or un-
derstanding—likewise fail to support its conclusion. In fact, quite the
opposite—they militate against it. The signs here were merely posted
in unattended vehicles. And unlike the circumstances described in the
two cited sources, no one was stationed by the picket signs, and there is
no evidence of any coercion or intimidation of those who went to and
from the Respondent’s premises.
8 As noted above, the award states, without any discussion, that
“several contract clauses” reflect the Charging Party’s agreement that
there would be no picketing on the Respondent’s premises, presumably
referring to article G7 (Union Bulletin Boards) and article G11 (Man-
agement Rights), which are cited elsewhere in the award as relevant
provisions. However, neither of these provisions even remotely ad-
dresses the right of employees to display signs in their personal vehi-
cles. With respect to article G10, the Respondent argues that the panel
correctly interpreted the “no picketing” obligation separately from the
obligation not to engage in “any strike of or other interference with any
of the Company’s operations.” According to the Respondent, the use
of “or” between the two obligations was intended to prohibit all picket-
ing, not just picketing causing “interference” with its operations. But
whether the “no picketing” language instituted such an absolute prohi-
bition is irrelevant because the employees’ conduct was not picketing.
9 If anything, the evidence recounted by the award but never dis-
cussed in reaching its conclusion demonstrates that the parties narrowly
interpreted the “no picketing” clause. That evidence shows, and the
Respondent concedes, that the Charging Party engaged in informational
picketing near the Respondent’s facilities “for many years,” and the
Respondent “tolerated” such activity despite believing that it violated
the “no picketing” provision. Although in this case the disputed display
occurred on the Respondent’s property, the Respondent’s earlier toler-
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Moreover, the award offered no support for its implicit
suggestion that the parties understood “picketing” to en-
compass the displaying of signs in employees’ vehicles.
Its terse statement that “picketing is: to inform the public
of the Union’s concerns” is contrary to the well-
established body of law defining picketing to include a
confrontational element--which the parties were presum-
ably aware of when they entered into their successive
collective-bargaining agreements. See Engelhard Corp.,
supra at 48 (citing cases that found that a collective-
bargaining agreement must be read in light of the pre-
vailing law at the time the contract was made). For in-
stance, the Supreme Court has observed that “picketing
is qualitatively ‘different from other modes of communi-
cation.’” Babbitt v. United Farm Workers, 442 U.S. 289,
311 fn. 17 (1979) (quoting Hughes v. Superior Court,
339 U.S. 460, 465 (1950)); see also DeBartolo Corp. v.
Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S.
568, 580 (1988) (“[P]icketing is ‘a mixture of conduct
and communication’ and the conduct element ‘often pro-
vides the most persuasive deterrent . . . .’”) (quoting
NLRB v. Retail Store Employees, 447 U.S. 607, 619
(1980) (Stevens, J., concurring)). More recently, the
Board has explicitly distinguished “bannering” from
“picketing” because bannering lacks the confrontation
that is essential to picketing. Carpenters Local 1506
(Eliason & Knuth of Arizona), supra; see also Chicago
Typographical Union No. 16 (Alden Press), 151 NLRB
1666, 1669 (1965) (“One of the necessary conditions of
‘picketing’ is a confrontation in some form . . . .”) (quot-
ing NLRB v. United Furniture Workers of America, 337
F.2d 936, 940 (2d Cir. 1964)).
To be sure, the Board has found that picketing is not
confined to a “sign on a stick” and, in certain circum-
stances, has held that stationary signs can constitute
picketing. See, e.g., Construction & General Laborers
Local 304 (Athejen Corp.), 260 NLRB 1311, 1316
(1982) (signs placed on cones, barricades, or a fence con-
stituted picketing). But in finding that picketing oc-
curred in such cases, the Board has relied on the presence
of individuals in the area where the signs were stationed.
“[T]he ‘important’ or essential feature of picketing is the
posting of individuals at entrances to a place of work.”
Service Employees Local 87 (Trinity Building Mainte-
nance), 312 NLRB 715, 743 (1993), enfd. mem. 103
F.3d 139 (9th Cir. 1996); see also Lumber & Sawmill
Workers Local Union No. 2797 (Stoltze Land & Lumber
Co.), 156 NLRB 388, 394 (1965) (“The important fea-
ture of picketing appears to be the posting by a labor

ance of the employees’ actual, physical picketing for informational
purposes is at odds with its attempt now to construe the “no picketing”
language as an absolute ban.
organization . . . of individuals at the approach to a place
of business to accomplish a purpose which advances the
cause of the union . . . .”). In other words, a necessary
element of picketing is personal confrontation.10 Eliason
& Knuth, 355 NLRB at 802 (“The element of confronta-
tion has long been central to our conception of picket-
ing.”). Notably, the award failed to reference any of the
Board or court decisions that have defined what consti-
tutes picketing.
In sum, the contractual provisions cited by the Re-
spondent and considered by the arbitration panel neither
address nor reasonably encompass employees’ display of
signs in their personal vehicles, and there is no evidence
that the parties intended the contract to cover that con-
duct. Accordingly, considering all the circumstances, as
the award is not susceptible of an interpretation that is
consistent with the Act, we find that it is “clearly repug-
nant” to the Act, and that deferral to the award is inap-
propriate. Because it is undisputed that the Respondent’s
supervisors told employees at the three facilities that they
could not display their signs in their vehicles, we con-
clude that the Respondent unlawfully prohibited the em-
ployees from exercising their Section 7 rights in violation
of Section 8(a)(1) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Verizon New England Inc., Springfield,
Massachusetts, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Telling employees that they cannot display signs in
their personal vehicles parked on company property.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

10 Our dissenting colleague observes that, in some cases, the Board
has found picketing even absent patrolling or other ambulation. As the
Board observed in Eliason & Knuth, however, in many of those cases,
the display of picket signs was preceded at the same location or accom-
panied at other locations by traditional, ambulatory picketing; union
representatives were stationed near the stationary picket signs conspic-
uously to observe and, in some cases, record who entered the facility;
and/or there was evidence that the stationary signs or posted union
representatives had the effect of inducing employees to refuse to make
deliveries to the target site. 355 NLRB at 804. Given the surrounding
circumstances in those cases, the Board explicitly or implicitly found
the conduct at issue constituted “signal” picketing. Id. at 805; see also
Southwest Regional Council of Carpenters (Held Properties), 356
NLRB No. 11, slip op. at 1–2 (2010). There is no evidence of “signal”
picketing here. Further, unlike the dissent, we are focused here on
whether the Charging Party waived its right to engage in the conduct at
issue. It is the award’s analysis and resolution of that question that we
find clearly repugnant to the Act.
5
VERIZON NEW ENGLAND, INC.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its Springfield, Westfield, and Hatfield, Massachusetts
facilities copies of the attached notice marked “Appen-
dix.”11 Copies of the notice, on forms provided by the
Regional Director for Region 1, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places, including all places where
notices to employees are customarily posted. In addition
to physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since March 27,
2008.
(b) Within 21 days after service by the Region, file
with the Regional Director for Region 1 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 9, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER JOHNSON, dissenting.
I respectfully disagree from my colleagues’ finding
that deferral to the arbitral award at issue was inappropri-
ate because that award was repugnant to the Act. Even
recent Board precedent holds that the display of placards
in employees’ cars parked on the employer’s premises is
susceptible to being interpreted as picketing because the

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
same placards were simultaneously being used for the
same informational protest in ambulatory picketing else-
where and were also taken from those vehicles by the
employees and carried when it was their turn to walk the
picket line. See Carpenters Local 1506 (Eliason &
Knuth of Arizona, Inc.), 355 NLRB 797, 804 (2010)
(“We also acknowledge that there are prior Board deci-
sions finding picketing during periods when there was no
patrolling or other ambulation. However, each of the
prior cases is distinguishable from the banner displays at
issue here. In many of the prior cases, the display of sta-
tionary signs or distribution of handbills was preceded at
the same location or accompanied at other locations by
traditional, ambulatory picketing.”) Our deferral prece-
dent holds that, if an arbitrator’s interpretation is allowa-
ble under the Act, our inquiry must end. So it was here.
The picketing finding is also dispositive of the waiver
issue. The Union here clearly and unmistakably waived
the right of employees to engage in “picketing of any of
the Employer’s premises.” If the display of placards in
employees’ cars on the Employer’s premises in the cir-
cumstances of this case can be defined as picketing con-
sistent with the Act--and the Eliason & Knuth majority
acknowledged that it has been so defined--no Board or
judicial precedent requires reference to some extrinsic
evidence of the parties’ negotiations and understanding
before the Board will find waiver. There is no ambiguity
here. The Union has the undisputed authority to waive
the rights of represented employees on the Employer’s
premises, and it has plainly done so. 1
Ultimately, deferral to an arbitral award merely re-
quires that it be “consistent with the Act,” which the
Board has repeatedly held “does not mean that the Board
would necessarily reach the same result. It means only
that the arbitral result is within the broad parameters of
the Act. Thus, the Board’s mere disagreement with the
arbitrator’s conclusion would be an insufficient basis for

1 My colleagues disagree with the award because they do not find a
“clear and unmistakable” waiver by the Charging Party. But the Board
has deferred to an award even if “neither the award nor the [contract]
clause read in terms of the statutory standard of clear and unmistakable
waiver.” Motor Convoy, 303 NLRB 135, 136 (1991); see also Southern
California Edison, 310 NLRB 1229, 1231 (1993) (arbitral award “can
be susceptible to the interpretation that the arbitrator found a waiver
even if the arbitral award does not speak in [terms of clear and unmis-
takable waiver]”); Postal Service, 275 NLRB 430, 432 (1985) (defer-
ring to arbitration award finding waiver of Weingarten rights despite
failure to apply statutory standard); Olin Corp., 268 NLRB 573, 576
(1984) (Even though Board Members might differ as to required speci-
ficity necessary for contractual waiver of statutory rights, “[t]he ques-
tion of waiver . . . is also a question of contract interpretation. An
arbitrator’s interpretation of the contract is what the parties here have
bargained for and, we might add, what national labor policy pro-
motes.”)
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Board to decline to defer to the arbitrator’s award.”
Smurfit-Stone Container Corp., 344 NLRB 658, 659–660
(2005). See also Andersen Sand & Gravel Co., 277
NLRB 1204, 1205 fn. 6 (1985) (“Deferral recognizes that
the parties have accepted the possibility that an arbitrator
might decide a particular set of facts differently than
would the Board. This possibility, however, is one which
the parties have voluntarily assumed through collective
bargaining.”). Although my colleagues might reasonably
disagree with the conclusion reached by the arbitration
panel here, a disagreement over an arguable contract or
legal interpretation is not enough to set aside the result
from the parties’ chosen dispute resolution mechanism of
arbitration.
I would affirm the judge’s conclusion that deferral to
the arbitration award is appropriate and that the com-
plaint must be dismissed on this basis.
Dated, Washington, D.C. March 9, 2015
______________________________________
Harry I. Johnson, III, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT tell you that you cannot display signs in
your personal vehicles parked on company property.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
VERIZON NEW ENGLAND INC.
The Board’s decision can be found at
www.nlrb.gov/case/01-CA-044539 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273–1940.
Laura Sacks, Esq. and Daniel Fein, Esq., for the General Coun-
sel.
Arthur Telegen, Esq. and John Duke, Esq. (Seyfarth Shaw
LLP), for the Respondent.
Alfred Gordon, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. The consoli-
dated complaint here, which issued on June 30, 2011, and was
based upon unfair labor practice charges that were filed on
March 27, April 9 and 29, 2008,1 by International Brotherhood
of Electrical Workers, Local 2324, AFL–CIO (the Union), al-
leges that Verizon New England, Inc. (Respondent), violated
Section 8(a)(1) of the Act, by telling employees in about March
and April that they could not display signs containing such
statements as “Verizon Honor Or Existing Contract,” “Verizon
We Are Ready Contract 08” and “Every Verizon Worker
Should Be A Union Worker” in personal vehicles parked on
company property. Among other defenses, the Respondent
defends that this complaint should be dismissed because the
Board should defer to an arbitrator’s decision which meets the
standards set forth in Olin Corp., 268 NLRB 573 (1984), and is
dispositive of the charges here.
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE FACTS
The record here is based solely upon stipulations and exhib-
its agreed to by the parties; there was no record testimony. The
Respondent is engaged in the business of providing telecom-
munications services nationwide; however, only three of its
facilities in Massachusetts are involved here: the facilities in
Westfield, Springfield, and Hatfield (the Westfield facility), the
Springfield facility, and the Hatfield facility. Mark Brown was
the manager of the Westfield facility, Tony Collier was the area
operations manager of the Springfield facility, and David

1 Unless indicated otherwise, all dates referred to here relate to the
year 2008.
7
VERIZON NEW ENGLAND, INC.
Walker was the area operations manager of the Hatfield facili-
ty, and each of them is admitted to be a supervisor and agent of
the Respondent within the meaning of Section 2(11) and 2(13)
of the Act.
Respondent was party to a collective-bargaining agreement
effective from August 3, 2003, to August 2, covering so called
“plant” employees in Massachusetts and Rhode Island. This
bargaining unit is represented by a number of local unions of
the International Brotherhood of Electrical Workers, including
the Union. The contract contains a grievance and arbitration
provision as well as a No Strike provision, which states:
The Union agrees that during the term of this Agreement, or
any extension thereof, it will not cause or permit its members
to cause, nor will any member of the Union take part in, any
strike of or other interference with any of the Company’s op-
erations or picketing of any of the Company’s premises.
In addition the contract provides that the Respondent shall fur-
nish the Union with bulletin boards at its facilities, with the
caveat:
Bulletin boards are to be used by the Union for posting notic-
es concerning official Union business, or other Union related
matters, provided that if anything is posted on these bulletin
boards that is considered by the Company to be controversial
or derogatory to any individual or organization the Union
agrees to remove such posted matter on demand and if it fails
or refuses to do so, such matter may be removed by the Com-
pany.
The Union has engaged in ambulatory informational picket-
ing at or near Respondent’s facilities over the years. This in-
formational picketing was most common when contracts were
nearing expiration. Employees engaged in informational pick-
eting would arrive at work before the start of their shifts and
carry picket signs either on the sidewalk in front of Respond-
ent’s facilities, or in a nearby public area. In March 2008, in
preparation for contract negotiations that were to take place in
August 2008, without notice to Respondent, the Union began
engaging in informational picketing at some of Respondent’s
facilities in Massachusetts. While there was no picketing at or
near the Westfield, Springfield, or Hatfield facilities in March
2008, the Union planned to engage in informational picketing
at or near these facilities beginning in April 2008. According-
ly, in March 2008, the Union distributed informational picket
signs to employees, which contained language to the effect of:
“Verizon, Honor Our Existing Contract.” These signs, measur-
ing about 28 inches wide by 22 inches high, are in black with
white lettering.
Bargaining unit employees at the Springfield facility dis-
played these signs in the windshields of their personal vehicles
parked on the Respondent’s property during the first week of
April 2008, and the signs were displayed in the cars every day
that week. A line of about 30 cars with these signs was visible
upon entering the parking lot and, depending on which way the
cars were facing, some of these signs displayed in the cars were
visible from the street. On about Friday, April 11, Collier in-
structed bargaining unit employees to remove these signs from
their car windows while the cars were parked on its premises,
and the employees complied with these instructions and no
employee was disciplined as a result of displaying the signs. At
the time that these signs were displayed at the Springfield facil-
ity, and at the time that Collier instructed the employees to
remove the signs, no ambulatory informational picketing had
occurred at the Springfield facility. Rather, the ambulatory
informational picketing began in the street in front of the facili-
ty between 7 and 7:30 a.m. on Thursday, April 24, and contin-
ued at this facility at these same times on Thursday mornings
thereafter for a period of time, using the signs that were placed
in the car windows as discussed above.
Bargaining unit employees at the Westfield facility displayed
these signs in the windshields of their personal vehicles parked
on the Respondent’s property on Thursday, March 20 and Fri-
day, March 21. The signs displayed in the car windows were
not visible from the public street, but were visible to Respond-
ent’s bargaining unit employees and managers, and were visible
to employees of the Penske Trucking and Agway facilities that
share the property with Respondent, and were visible to deliv-
ery drivers and others entering the property. On about Monday,
March 24 or Tuesday, March 25, Brown instructed bargaining
unit employees to remove these signs from their car windows
while the cars were parked on its premises, and the employees
complied with these instructions and no employee was disci-
plined as a result of displaying the signs. At the time that these
signs were displayed at the Westfield facility, and at the time
that Brown instructed the employees to remove the signs, no
ambulatory informational picketing had occurred at the West-
field facility. Rather, the ambulatory informational picketing
began in the street in front of the facility between 7 and 7:30
a.m. on Friday, April 25, and continued occasionally thereafter
at this location at these same times.
Bargaining unit employees at the Hatfield facility displayed
these signs in the windshields of their personal vehicles parked
on the Respondent’s property on Wednesday, April 23. The
signs displayed in the car windows were not visible from the
public street, because they were facing the wrong direction, but
were visible to Respondent’s bargaining unit employees, man-
agers, and contractors, and to others entering the property, such
as personnel of waste removal and landscaping contractors and
personnel of the Postal Service, Federal Express, and United
Parcel Service. Later that day, Walker instructed bargaining
unit employees to remove these signs from their car windows
while the cars were parked on its premises, and the employees
complied with these instructions at the time it was given, and
no employee was disciplined as a result of displaying the signs.
At the time that these signs were displayed at the Hatfield facil-
ity, and at the time that Walker instructed the employees to
remove the signs, no ambulatory informational picketing had
occurred at this facility. Rather, the ambulatory informational
picketing began in a private parking lot approximately one half
mile from the Hatfield facility between 7 and 7:30 a.m. on
Thursday, April 24, and continued occasionally thereafter at
this location at these same times.
The signs displayed in the bargaining unit employees’ per-
sonal vehicles in March and April at the Springfield, Westfield,
and Hatfield facilities as described above were not on sticks
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and when the bargaining unit employees engaged in the infor-
mational picketing at or near these facilities, as described
above, they used the same signs again, without sticks. Re-
spondent is not aware of any interruption or other disruption of
its operations caused by the ambulatory picketing at these facil-
ities.
On May 21 and June 18, Region 1 of the Board deferred the-
se unfair labor practice charges to the grievance and arbitration
procedures of the parties’ collective-bargaining agreement.
Subsequently, the Union grieved the issue of whether the Re-
spondent violated the contract by requiring the employees to
remove the signs from their personal vehicles. An arbitration
hearing was held on October 26, 2009, before Arbitrator Timo-
thy Bornstein, one of a group of arbitrators regularly selected
by the parties to resolve contractual disputes, and the Union
presented six witnesses and Respondent presented one. Both
sides were afforded the opportunity to examine and cross exam-
ine the witnesses and both submitted posthearing briefs.
The arbitrators’ Award issued on January 20, 2010, with the
Union’s designated arbitrator dissenting. The award summa-
rizes the testimony of the business managers of the Union, as
well as another IBEW local union, three employees and Walk-
er, and sets forth the contractual language of the following pro-
visions: Bulletin Board, Arbitration, No Strike, and Manage-
ment Rights, and the contentions of both sides. The Opinion
concludes:
The core question here is whether management violated the
parties’ contract when it required removal of Union protest
signs from employee vehicles parked on Company premises.
That was the issue which the NLRB Collyerized. We con-
clude that several contract clauses reflect the parties’ agree-
ment that the Union— and its members—would not engage
in picketing on Company premises during the life of the col-
lective bargaining agreement.
Article G10, the No Strike article, provides that the “Un-
ion…will not cause or permit its members to cause, nor will
any member of the Union take part in, any strike of or other
interference with any of the Company’s operations or picket-
ing of any of the Company’s premises.” By any other name,
Union members who place protest signs in their cars to in-
form the public of its contract concerns with Verizon are en-
gaged in picketing. While the Union argues that placing signs
in cars is not picketing because doing so only communicates a
message, that is precisely what picketing is: to inform the
public of the Union’s concerns. Picketing does not have to be
a sign on a stick.
The Union also contends that the Company decision to order
the signs removed from cars was arbitrary or in bad faith in
violation of Article G9.03(b), but there is no such evidence.
Whether the Company’s demand that the signs be removed
from employees’ vehicles infringed employees’ Section 7
rights is a question that we do not have the authority to re-
solve. Our authority is limited to interpreting the contract. We
do no more.
By letter dated August 27, 2010, Region 1 of the Board noti-
fied the parties that it was refusing to issue a complaint in the
matter and was dismissing the Union’s unfair labor practice
charges, stating:
By letter dated May 21, 2008, pursuant to the Board’s deci-
sion in Collyer Insulated Wire, 192 NLRB 837 (1971), and
pursuant to “Arbitration Deferral Policy under Collyer- Re-
vised Guidelines” publicly issued by the General Counsel on
May 10, 1973, I deferred a decision on the charges in the
above-captioned cases pending the outcome of an arbitration
proceeding.
On January 20, 2010, the arbitrator selected by the parties is-
sued an award ruling that the Employer acted within its rights
when it required that the picket signs be removed from per-
sonal vehicles in the Company parking lots.
I have made a careful review of this matter and find that the
arbitration proceedings were fair and regular, that the parties
had agreed to be bound by the results of the proceedings, that
the unfair labor practice issue alleged and involved in the
charges were presented to and considered by the arbitrator,
that the contractual issue was factually parallel to the unfair
labor practice issue, that the arbitrator was presented generally
with the facts relevant to resolving the unfair labor practice,
and that the award is not in conflict with the purposes or poli-
cies of the National Labor Relations Act. Thus, the award
meets the standards set forth by the Board in Olin Corpora-
tion, 268 NLRB 573 (1984), and the Board would defer to the
award.
Here, the unfair labor practice issue is whether the Employer
violated employees’ Section 7 rights by requiring employees
to remove picket signs from their personal vehicles on the
Employer’s property. The issue presented to the Arbitrator
was: Whether management violated the parties’ contract
when it required removal of Union protest signs from em-
ployees’ vehicles parked on Company property. Both the un-
fair labor practice and the grievance contemplate the same ac-
tions by the employees, putting the picket signs in the cars and
the same action by the Employer, requiring the removal of the
signs. Therefore, the issues are factually parallel.
In regard to your claim that the arbitrator’s award was repug-
nant to the Act, the Board will not find an award is clearly re-
pugnant unless it is shown to be palpably wrong, i.e., not sus-
ceptible to an interpretation consistent with the Act. The arbi-
trator’s finding that the collective-bargaining agreement pro-
hibited picketing on the Employer’s premises and the union
signs constituted picketing is susceptible to an interpretation
with the Act and, therefore is not repugnant.
I am, therefore, refusing to issue a Complaint in this matter,
and the charges are hereby dismissed.
Subsequently, Region 1 conducted a further investigation,
determined that deferral to the arbitrator’s award was not ap-
propriate, but dismissed the charges on the merits stating, by
letter dated February 14, 2011:
The Region has carefully investigated and considered the
charges against Verizon, Inc., alleging violations under Sec-
tion 8 of the National Labor Relations Act.
9
VERIZON NEW ENGLAND, INC.
The charges allege that the Company interfered with employ-
ees’ rights to engage in protected concerted activities under
Section 7 of the Act, by ordering employees who displayed
union signs in their cars, while the cars were parked on Com-
pany property, to remove them.
The case was originally Collyer deferred on May 21, 2008,
and the Office of Appeals denied the Union’s appeal of the
deferral determination on June 28, 2008.
On January 20, 2010, an Arbitrator’s Award issued in favor of
the Employer, stating that the Employer acted within its rights
when it required that the picket signs be removed from per-
sonal vehicles in the Company parking lots.
On May 14, 2010, the Union submitted a position statement
requesting that the Region not defer to the Arbitrator’s Award
and, instead, process the case further. The Union argued that
the Region should not defer to the Arbitrator’s Award be-
cause: (1) The arbitrator did not consider the unfair labor
practice issue; and (2) the award was repugnant o the Act.
On August 27, 2010, the Region deferred to the Arbitrator’s
award and dismissed the unfair labor practice charges, basing
its decision upon its Spielberg/Olin review of the arbitration
award. The Region determined that the proceedings were: fair
and regular; the parties had agreed to be bound by the results
of the proceeding; the unfair labor practice issue alleged in the
charges were presented to, and considered by the arbitrator;
the contractual issue was factually parallel to the unfair labor
practice issue; the arbitrator was presented generally with the
facts relevant to resolving the unfair labor practice; and the
award was not in conflict with the purposes or policies of the
Act. Olin Corporation, 268 NLRB 573 (1984). Accordingly,
the Region deferred to the award and dismissed the charge.
On September 5, 2010, the Union appealed the Region’s dis-
missal. Prior to a finding by the Office of Appeals, the Region
conducted further investigation. Based upon that investiga-
tion, I find that deferral to the Arbitrator’s Award is not ap-
propriate because his conclusion that the Union’s conduct of
seeking to communicate a message by displaying signs in
parked vehicles constituted picketing was overly broad and,
therefore, repugnant to the Act. I am, therefore, revoking my
August 27, 2010 dismissal letter. I further find, however, that
further proceedings on your charges are not warranted based
on additional evidence obtained in the further investigation.
Decision to Dismiss: Based on additional investigation, I have
concluded that further proceedings are not warranted, and I
am dismissing your charge for the following reasons:
After further investigation, the Region found that the Union’s
informational picketing against the Employer was an area-
wide effort that began two weeks prior to the Employer’s pro-
hibition against sign posting in employee vehicles on the Em-
ployer’s property. Further, the directive to remove the signs at
the locations at issue in your charges began one day prior to
traditional picketing at two of the three locations at issue and
within a couple of weeks at the third location. I note that the
Union made and distributed the picket signs for the purpose of
engaging in informational picketing, conduct the Union had a
practice of engaging in prior to the expiration of prior con-
tracts. Accordingly, it is reasonable to conclude that the con-
duct engaged in here was part and parcel of an area-wide
picketing campaign in furtherance of a labor dispute rather
than the mere placement of signs in employee vehicles on
Company property. This finding is consistent with the
Board’s recent case on bannering. In United Brother of Car-
penters & Joiners of America (Eliason & Knuth of Arizona,
Inc.), 355 NLRB No. 159 (August 27, 2010), the Board
acknowledged that there are prior Board decisions finding
picketing during periods when there was no patrolling or oth-
er ambulation, and found those cases distinguishable because
the display of stationary signs or distribution of handbills in
those cases was preceded at the same location or accompanied
at other locations by traditional ambulatory picketing and, in
many instances, the same signs were displayed that had been
utilized in traditional picketing. Accordingly, the Employer,
relying on that portion of the collective-bargaining agreement
in which the Union clearly and unequivocally waived the em-
ployees’ right to picket on the Employer’s premises, lawfully
directed employees to remove signs from vehicles parked on
the Employer’s premises. I note that the Employer’s directive
was narrowly tailored to restrict picketing on the Employer’s
property in accordance with the parties’ collective-bargaining
agreement.
The Union appealed this dismissal on about March 6, 2011, and
on June 2, 2011, the Office of Appeals sustained the Union’s
appeal, and remanded the case to the Region with instructions
to issue a complaint, absent settlement, stating only: “The Em-
ployer’s prohibition on employees from displaying union signs
in their vehicles located in the employees’ parking lot raised
issues warranting Board determination based on record testi-
mony developed at a hearing before an administrative law
judge.”
III. ANALYSIS
The initial question here is whether the arbitrators’ decision
satisfies the requirements of Olin, supra, which modified the
Board’s deferral standards somewhat. In Olin, the administra-
tive law judge, finding that the arbitrator had not properly or
seriously considered the unfair labor practice, declined to defer
to the arbitrator’s decision, but dismissed the complaint on the
merits. The Board reversed, finding that the judge should have
deferred to the arbitrator’s decision under the standards set
forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), while also
setting forth more specific standards for arbitration deferral,
specifically rejecting the proposition that “arbitration awards
are appropriate for deferral only when the Board determines on
de novo consideration that the award disposes of the issue just
as the Board would have.” Rather, the Board adopted the fol-
lowing standard for deferral:
We would find that an arbitrator has adequately considered
the unfair labor practice if (1) the contractual 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,
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
between the contractual and statutory standards of review
should be weighed by the Board as part of its determination
under the Spielberg standards 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 arbitra-
tor’s award to be totally consistent with Board precedent. Un-
less the award is “palpably wrong,” i.e., unless the arbitrator’s
decision is not susceptible to an interpretation consistent with
the Act, we will defer.
In addition, the Board placed upon the party seeking to have the
Board ignore the arbitrator’s decision, “the burden of affirma-
tively demonstrating the defects in the arbitral process or
award.” Therefore, the issues here are whether the contractual
issues as presented to the arbitrator were factually parallel to
the unfair labor practice issues and whether the parties to the
arbitration litigated the facts relevant to the unfair labor practice
issue, as well as the contractual issue, and whether the arbitra-
tion decision was repugnant to the Act or was palpably wrong,
remembering that it is the burden of counsel for the General
Counsel and counsel for the Charging Party to establish that the
Board should not defer to the arbitration award
In Andersen Sand & Gravel Co., 277 NLRB 1204 (1985),
the administrative law judge, in finding that deferral was inap-
propriate, relied on the absence of any rationale in the arbitra-
tion award indicating that the panel considered the unfair labor
practice allegation. The Board reversed, finding that deferral
was appropriate as the counsel for the General Counsel did not
sustain her burden:
First, it is clear that that the contractual and statutory issues
are factually parallel. Indeed, as admitted by the General
Counsel, the question of whether an employee may be dis-
charged for violating a no strike clause is one which must be
decided on a determination of the meaning and interpretation
of the collective-bargaining agreement. Thus, the statutory
question of whether the right to strike for less than 24 hours is
protected under a 24 hour clause, or has been clearly and une-
quivocally waived under the no-strike provision of the con-
tract, is a question of contract interpretation.
The Board found that the contractual and statutory issues were
coextensive and that the arbitration panel was presented gener-
ally with the facts relevant to resolving the unfair labor prac-
tice. The Board stated further:
Although the judge premised his decision in part on a finding
that the arbitration panel did not receive or consider the law
relating to the unfair labor practice, we believe the judge mis-
interprets the requirements of Olin. Under Olin, the arbitrator
need only be “generally presented” with the facts relevant to
resolving the statutory issue.
The Board concluded:
In the absence of any evidence to the contrary, it is reasonable
to conclude that resolution by the panel of the contractual is-
sue required the same evidence relevant to resolving the un-
fair labor practice issue. Therefore, because the evidence be-
fore the arbitration panel was essentially the same evidence
necessary for a determination of the merits of the unfair labor
practice charge, we are satisfied that this requirement has been
met.
Finally, in response to counsel for the General Counsel’s argu-
ment that the award was repugnant to the purposes and policies
of the Act, the Board, at footnote 6, states: “Deferral recognizes
that the parties have accepted the possibility that an arbitrator
might decide a particular set of facts differently than would the
Board. This possibility, however, is one which the parties have
voluntarily assumed through collective bargaining.”
In Specialized Distribution Management, Inc., 318 NLRB
158 (1995), four employees left their work stations without
permission, in apparent violation of a number of contractual
provisions. When they were called into the manager’s office,
were told that they were being suspended pending further in-
vestigation and were told to punch out and leave the facility,
they refused to leave without a letter of explanation. Three
eventually left after the security department was called, and the
fourth did not leave until the sheriff’s department was called.
The arbitrator found that walking off the job was not a dis-
chargeable offense, but that the insubordination charge war-
ranted substantial disciplinary action. He converted the dis-
charges of the three who left the facility into suspensions with-
out backpay and found that the discharge of the fourth employ-
ee was for just cause. Counsel for the General Counsel argued
against deferral, alleging that the unfair labor practice issue was
not considered, and that the decision was repugnant to the Act.
The judge, as affirmed by the Board deferred. Citing footnote 6
of the Board decision in Andersen, supra, the judge stated:
Arbitrator Kagel has found facts that generally track those al-
leged to be unfair labor practices and the General Counsel has
not established that the arbitrator was lacking any evidence
relevant to the determination of that issue. Moreover, Kagel
found that the insubordination overrode the other considera-
tions, including what might be a protected circumstance.
In Laborers International Union, Local 294, 331 NLRB 259
(2000), the complaint alleged that the Respondent Union vio-
lated Section 8(b)(1)(A) and (2) of the Act by dispatching three
individuals to jobsites, in violation of its contract and hiring
hall rules, thereby bypassing other employee-registrants who
were entitled to be dispatched. The relevant contractual provi-
sion relating to hiring hall dispatching generally provides that
referrals are in the order of registration on the out-of-work list,
with certain exceptions whereby an employer may request that
a specific individual be referred. The judge refused to defer to
an arbitrator’s decision; the Board reversed, finding that the
contractual issue before the arbitrator was factually parallel to
the unfair labor practice issue:
The critical point of both the contractual grievance and the un-
fair labor practice was that the Respondent Union violated the
hiring hall rules in making specific dispatches to Valley Fence
and Fresno Paving. Thus, the arbitrator considered substan-
tially the same issue as that raised by the General Counsel’s
complaint. The arbitrator also had before him and reviewed
the same facts that would be relevant to the unfair labor prac-
tice.
In Smurfit-Stone Container Corp., 344 NLRB 658, 659–660
11
VERIZON NEW ENGLAND, INC.
(2005), the Board, in deciding to defer to the arbitrator’s deci-
sion, further defined “susceptible to an interpretation consistent
with the Act” as stated in Olin, supra:
“Susceptible to an interpretation consistent with the Act”
means precisely what it says. Even if there is one interpreta-
tion that would be inconsistent with the Act, the arbitral opin-
ion passes muster if there is another interpretation that would
be consistent with the Act. Further, “consistent with the Act”
does not mean that the Board would necessarily reach the
same result. It means only that the arbitral result is within the
broad parameters of the Act. Thus, the Board’s mere disa-
greement with the arbitrator’s conclusion would be an insuffi-
cient basis for the Board to decline to defer to the arbitrator’s
award.
In Kvaerner Philadelphia Shipyard, Inc., 346 NLRB 390
(2006), the Board affirmed the judge’s dismissal of a 8(a)(3)
allegation and deferred to an arbitrator’s decision upholding the
discharge. The employee wrote a letter to fellow employees
containing false allegations that the employer had withheld
some of their pay and benefits and had earned interest for itself
with the withheld money. The employee and the union con-
tended that he was engaged in protected concerted activities,
but the arbitrator distinguished his conduct from protected con-
duct: “However, by publishing unjustified allegations of inten-
tional bad faith to other employees without attempting to ascer-
tain the facts, the grievant rendered himself vulnerable to the
imposition of substantial discipline. There is no merit to the
Union’s assertion that the grievant was engaged in protected
speech or concerted action. His action recklessly publishing
accusations of dishonesty for other employees to take or see is
not protected speech under these circumstances” The Board,
quoting from Smurfit, supra, found that the arbitrator adequate-
ly addressed the unfair labor practice allegation in finding that
the grievant lost the protection of the Act and that his result was
not repugnant to, or inconsistent with Board precedent: “The
arbitrator’s factual finding here, that Smith had acted with reck-
less disregard for the truth, is not palpably wrong, and is sus-
ceptible to an interpretation consistent with Board precedent.
We therefore find that deferral is appropriate.”
On the other hand, there are cases that go the other way,
finding that the arbitrator’s decision is repugnant to the purpos-
es and policies of the Act. In Garland Coal & Mining Co., 276
NLRB 963 (1985), the Board refused to defer to an arbitrator’s
decision upholding the discharge of a union president who was
fired for refusing to obey a supervisor’s order to sign a memo
setting forth the employer’s position on an issue relevant to the
union. The arbitrator found his refusal to be insubordination.
The Board agreed with the judge that the discriminatee “was
espousing a view and engaging in activity in support of the
union’s interpretation of the collective-bargaining agreement.
To find that Oldham was insubordinate under these circum-
stances is not susceptible to any interpretation consistent with
the Act.” Similarly, in 110 Greenwich Street Corp., 319 NLRB
331 (1995), the Board refused to defer to an arbitrator’s award
upholding the discharge of an employee for engaging in con-
certed activities. The employee was fired for posting signs in
his car windows while the car was parked in front of the build-
ing where they were employed. The signs objected to the fact
that the employer was regularly late in paying the employees
and that the employer should sell his expensive car and pay the
employees in a timely manner. The arbitrator ruled that the
“display of controversial placards in front of the building” justi-
fied the discharge of the employee. The judge, as affirmed by
the Board, found that “the arbitrator’s finding that the display
of controversial placards is a just basis for disciplinary action is
similarly misguided; the award is not susceptible to an interpre-
tation that is consistent with the employees’ rights to engage in
concerted activities under Section 7 of the Act” and was there-
fore repugnant to the Act.
In Mobil Oil Exploration & Producing, U.S., Inc., 325
NLRB 176 (1997), the discriminatee/Charging Party had an
ongoing dispute with the union president, alleging that he was
working at another job while allegedly conducting union busi-
ness, and he reported the situation to his (and their) employer.
The employer told him that he would investigate the allega-
tions, but that it was confidential, and that he was not to discuss
it with anyone. Shortly thereafter, he was overheard discussing
the investigation with fellow employees and he was fired for
improper interference with the investigation and for insubordi-
nation. The arbitrator upheld the discharge finding that the
Charging Party was insubordinate by not complying with the
instructions that he received to keep the investigation confiden-
tial. The Board refused to defer to the arbitrator’s award:
We agree with the General Counsel that the arbitration award
is palpably wrong and repugnant to the Act because the pre-
cipitating event that caused Pemberton’s termination was his
exercise of protected concerted activities. Because the arbitra-
tion award upholds Pemberton’s discipline based on his pro-
tected concerted activities, we find that deferral to the award
is inappropriate and that the Respondent violated Section
8(a)(1) as alleged.
The initial requirements of Spielberg and Olin have clearly
been met as the proceedings appear to have been fair and regu-
lar and all parties agreed to be bound by the arbitrator’s deci-
sion. I also find that the arbitrator was presented with the facts
relevant to resolving the unfair labor practice issue and ade-
quately considered the unfair labor practice issue, which was
factually parallel to the contractual issue. The panel discussed
all the relevant contractual terms, interpreted them and deter-
mined (right or wrong) that the signs in the car windows violat-
ed these contractual provisions and that the Respondent’s direc-
tives to the employees to remove the signs did not violate the
contract. The decision concluded by saying that the arbitration
panel did not have the authority to resolve the issue of whether
the management directive infringed on employees’ Section 7
rights, and the panel was correct. That is a Board function to
resolve and, if appropriate, to correct.
The final issue in determining whether to defer to the arbitra-
tion ruling is whether counsels for the General Counsel and the
Charging Party have sustained their burden that the arbitrator’s
decision is repugnant to the Act, or palpably wrong. I find that
they have not. Counsel for the General Counsel, in his brief,
forcefully argues that the Respondent’s direction to the em-
ployees to remove the signs from their vehicles was unlawful
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
because the no-picketing provision contained in the contract did
not “clearly and unmistakably” waive the Union’s statutory
right to engage in lawful informational picketing. Citing a
recent case, Carpenters Local 1506 (Eliason & Knuth of Arizo-
na, Inc.), 355 NLRB 797 (2010), counsel for the General Coun-
sel also argues that the signs in the employees’ vehicles did not
constitute picketing and, further, for a stationary sign to qualify
as picketing there must be an element of confrontation. Alt-
hough these arguments may be correct, that is not helpful in
sustaining his burden here. More to the point is the argument
made by counsel for the Respondent: “There is nothing in
Board law that prevents an arbitrator from interpreting the word
‘picket’ in a collective bargaining agreement provision prohib-
iting picketing more broadly than the Board would in an unfair
labor practice case not involving such a provision. This is es-
pecially so given the vacillations in Board precedent over the
definition of ‘picketing’ under the Act.” In Bell-Atlantic-
Pennsylvania, Inc., 339 NLRB 1084, 1087 (2003), the employ-
er prohibited its employees with customer contact from wearing
“Road Kill” shirts which it felt reflected negatively on its image
and employees who failed to comply with this directive were
suspended for one day without pay. The arbitrator sustained
the punishment, finding that the employer reasonably could
believe that observing the employees wearing the shirt would
unsettle the public. In deferring to the arbitrator’s decision, the
Board stated that they could not say that the arbitrator was
“palpably wrong” in striking the balance of interest as he did:
In short, we find that although the Road Kill shirt was protect-
ed under Section 7, it was not repugnant or “palpably wrong”
for the arbitrator to find that employees’ Section 7 interests
may give way to the Respondent’s legitimate interests in pro-
tecting its public image under the circumstances of this case.
I therefore find that although the Board, upon hearing this
case de novo might have reached a different conclusion than
that reached by the arbitrator, finding that the signs in the vehi-
cle windows was not picketing and were protected, the arbitra-
tor’s decision was neither repugnant to the Act nor was it pal-
pably wrong. I would therefore defer to the arbitrator’s deci-
sion, and recommend that the complaint be dismissed.
CONCLUSIONS OF LAW
1. The 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 meaning of
Section 2(5) of the Act.
3. The arbitrator’s decision should be deferred to, and there-
fore the Respondent did not violate Section 8(a)(1) of the Act
as alleged in the complaint.
On these findings of fact, conclusions of law and based on
the entire record, I hereby issue the following recommended.2
ORDER
It is recommended that the consolidated complaint be dis-
missed in its entirety.
Dated, Washington, D.C. November 15, 2011

2 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.