holding that “shouting and profanity are common and are protected activities” in the high emotion setting of grievance meetings
How later courts described this case
- holding that “shouting and profanity are common and are protected activities” in the high emotion setting of grievance meetings
- upholding refusal to defer to arbitration award on statutory rights issue
Written by the judges who cited it.
The opinion
WRIGHT, Circuit Judge
(dissenting).
I respectfully dissent.
The controlling issue here is whether Richardson’s conduct at the October 15 meeting was protected activity. While impulsive behavior may be protected during grievance proceedings, N.L.R.B. v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965); Crown Central Petroleum Corp. v. N.L.R.B., 430 F.2d 724, 730 (5th Cir. 1970), deliberate falsehoods are not. Owens-Corning Fiberglas Corp. v. N.L.R.B., 407 F.2d 1357, 1365 (4th Cir. 1969); Letter Carriers v. Austin, 418 U.S. 264, 277-78 , 94 S.Ct. 2770 , 41 L.Ed.2d 745 (1974). The inquiry is thus whether Richardson’s conduct was such as to cross the line of protected grievance activity.
In submitting the grievance to arbitration, the parties stipulated that the arbitrator’s decision would contain only his conclusions, and that a formal transcript would not be made of the testimony and arguments presented there. The award upholding Richardson’s termination was made in accordance with the grievance arbitration proceeding established by contract of the parties.
Arbitration enjoys a preferred position in labor law. Congress has declared that “[fjinal adjustment by a method agreed upon by the parties is . the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” 29 U.S.C. § 173 (d) (1970). The Supreme Court has viewed arbitration as serving the national interest by offering an alternative to economic coercion. 1
Although it is clear that the NLRB need not automatically defer to the arbitrator’s decision, N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 , 437 87 S.Ct. 565 , 17 L.Ed.2d 495 (1967), it attempts to do so as a matter of policy. N.L.R.B. v. Plasterers’ Union, 404 U.S. 116, 136-37 , 92 S.Ct. 360 , 30 L.Ed.2d 312 (1971); William E. Arnold Co. v. Carpenters, 417 U.S. 12, 16-17 , 94 S.Ct. 2069 , 40 L.Ed.2d 620 (1974).
The Board made its first major statement on deference to arbitration in Spielberg Mfg. Co., 112 NLRB 1080 (1955), where it said that it would not reconsider arbitrators’ awards on their merits if the proceedings appeared to be fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel was not *678 clearly repugnant to the purposes and policies of the Labor Management Relations Act (LMRA). Id. at 1082 .
In International Harvester Co., 138 N.L.R.B. 923 , enforced sub nom. Ramsey v. N.L.R.B., 327 F.2d 784 (7th Cir. 1964), the Board varied the language of the test, stating that it would not adjudicate an unfair labor practice claim which arose from the same facts as an arbitrated dispute “unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act.” 138 NLRB at 927. 2
This test was cited approvingly in Carey v. Westinghouse Electric Corp., 375 U.S. 261, 271 , 84 S.Ct. 401 , 11 L.Ed.2d 320 (1964), where the Court compelled an employer to arbitrate even though the Board alone could render a decision binding on the employer and two rival unions.
Under either test, the arbitrator's award in this case should have been upheld. There was no claim that the proceedings were not fair _ and regular. Rather, the Board held that Richardson’s activity was protected and that, by precluding a union from calling the credibility of management witnesses into question, the arbitrator had interfered with the effectiveness of the grievance and arbitration mechanism. Thus, said the Board, the award was clearly repugnant to the policies of the Act. In reversing the arbitrator’s award, however, the Board substituted its factual judgment for the arbitrator’s in deciding the motivation behind Richardson’s conduct.
The Board should defer to the arbitrator’s judgment on questions of fact and credibility. Cf. Electronic Reproduction Service Corp., 213 NLRB No. 110 (1974).
The fact that the Board has held that it will not consider deferring to an award unless the unfair labor practice issue was both presented to and considered by the arbitrator 3 does not change the result here.
The parties here stipulated that all relevant issues were properly before the arbitrator. Because the Board was not confronted with differing applicable contractual and statutory standards, the brevity of the arbitral award did not force it to speculate as to the standard applied by the arbitrator. Both the applicable standard as developed by case law and the relevant issues were ably briefed by the parties and presented to the arbitrator for consideration.
The test is not what the written decision contains, but what the arbitrator considered. Superior Motor Transportation Co., Inc., 200 NLRB No. 139 (1972); Terminal Transport Co., 185 NLRB 672 (1970).
The arbitrator’s decision meets the standards for deferral. It is not clearly repugnant to the purposes and policies of the LMRA and it is implicit in the decision that the arbitrator considered all relevant issues presented to him.
The decision of the Board should be denied enforcement.
. United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574 , 80 S.Ct. 1347 , 4 L.Ed.2d 1409 (1960). As one commentator has noted: “[T]he Supreme Court in 1960 recognized both a broad scope of interpretation and a narrow scope of judicial review for the arbitrator’s award. . . [T]he Court deferred to the arbitration process because it was the method chosen by the parties and because the arbitrator was considered to be most familiar with the functions of the collective bargaining agreement, the operation of the plant, and past practices in the parties’ bargaining relationship.” Note, 51 Wash.L.Rev. 470, 481 (1976).
. At least one commentator has viewed this as a drastic extension, rather than a variance of the Spielberg doctrine. See Note, 77 Yale L.J. 1191 , 1192 (1968).
. John Klann Moving & Trucking Co., 170 NLRB 1207 , enf'd 411 F.2d 261 (6th Cir.), cert. denied, 396 U.S. 833 , 90 S.Ct. 88 , 24 L.Ed.2d 84 (1969). Accord, Banyard v. NLRB, 164 U.S.App.D.C. 235 , 505 F.2d 342 (1974).