Petition for Writ of Certiorari — Yellow Freight System, Inc. v. National Labor Relations Board

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96-1918 Supreme Court, U,8,

FILED

JUN 13 I99)

_ OFFICE OF THe DLenk

In The

Supreme Court of the United States

October Term, 1990

YELLOW FREIGHT SYSTEM, INC.,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

JEFFREY IVAN PASEK

(Counsel of record)

CoHEN, SHAPIRO, POLISHER,

SHIEKMAN AND COHEN

PSFS Building, 24th Floor

12 South 12th Street

Philadelphia, PA 19107

(215) 922-1300

Attorneys for Petitioner

Of Counsel:

HowarpD LESNICK

3400 Chestnut Street

Philadelphia, PA 19104

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether, because the National Labor Relations Board

is termed an “agency” rather than a “court,” the United

States Courts of Appeals, when reviewing Board deci-

sions, are exempt from the requirement of 28 U.S.C. Sec-

tion 1738 to give “full faith and credit” to State court

judgments.

Whether the NLRB is similarly exempt.

Whether, by reason of Section 10(a) of the National

Labor Relations Act, the NLRB is also exempt from fed-

eral common law principles of issue preclusion, except as

they are reflected in the Board’s discretionary “deferral”

rules.

TABLE OF CONTENTS

Page

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Reasons for Allowance of the Writ................. 9

A. The decision below, that the Court of Appeals

in reviewing decisions of the National Labor

Relations Board is not subject to the mandate

of 28 U.S.C. Section 1738, because the Board is

termed an “agency” rather than a “court,” is in

conflict with a decision of the Court of

Appeals for the Eighth Circuit, and presents an

important issue of federal law that should be

wesoived Dy thie TOM oc icc csescckexonsens. 9

B. The decision below, that the National Labor

Relations Board is not subject to the mandate

of 28 U.S.C. Section 1738, because it is termed

an “agency” rather than a “court,” is in conflict

with the settled judicial practice of this and

other courts, and presents an important issue

of federal law that should be resolved by this

COWIE ok vo cpnccensccecapes wane eee ere eies 13

C. The decision below, that the principles of com-

mon law preclusion do not govern NLRB pro-

ceedings independently of the Board’s

discretionary deferral rules, presents an impor-

tant issue of federal law that has not been, but

should be, resolved by this Court ........... 21

Tee er re et ee eet ee 30

iii

TABLE OF CONTENTS - Continued

Page

Appendix Table of Contents:

United States Court of Appeals for the Third

Circuit Opinion filed April 11, 1991............ A-1

National Labor Relations Board Decision and

Order dated November 21, 1989 .............. A-18

Administrative Law Judge Decision dated May

ee oak kat a> Bie wn ees oe vessnsnies A-20

Superior Court of New Jersey Order and Judg-

ment filed February 10, 1989.................. A-44

Award of Arbitrator Daniel F. Brent dated August

es ee ee ee ee ee A-47

TABLE OF AUTHORITIES

Page

Cases

Algoma v. Plywood & Veneer Co. v. NLRB, 336 U.S.

OR SO Pe Tee ee eer er er ee 24

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) .... 22

Allen v. McCurry, 449 U.S. 90 (1980).......... 10, 11, 21

Barrentine v. Arkansas-Best Freight System, Inc., 450

SP Fae REEDS 60 beac Hila ee eh en cake a esakss 22

Bennett v. Schweiker, 532 F. Supp. 837 (D.D.C. 1982) .... 12

Blair v. Oesterlein Machine Co., 275 U.S. 220 (1927) .... 17

Botz v. Helvering, 134 F.2d 538 (8th Cir. 1943)..... 13, 20

Caldeira v. County of Kauai, 866 F.2d 1175 (9th Cir.

SEG Cas La G40 s RA DERA Ada Raa TEA RERA IRD OURS 5 6s 24

Chisholm v. Defense Logistics Agency, 656 F.2d 42

Ag SPR AE SSS ie resins tamer ere eee 26

Commissioner v. Gooch Milling & Elevator Co., 320

J RARE rr are eer errr 17

Crowell v. Benson, 285 U.S. 22 (1932) ................ 18

Evans v. Asphalt Roads & Materials Co., 194 Va. 165,

ee ee I Pe erer Terre eee ee 14, 20

Ex parte Bakelite Corp., 279 U.S. 438 (1929)........... 16

Gilmer v. Interstate/Johnson Lane Corp., ot

Pee Re ET PEE 055 65 b.b00sd Ken ke kes cease enees 22

Gorin v. Osborne, 756 F.2d 834 (11th Cir. 1985)....... 24

Industrial Commission v. McCartin, 330 U.S. 622

Nac Ce weed wa a es eee ae ens a 14

TABLE OF AUTHORITIES - Continued

Page

International Union of Mine Workers v. Eagle-Pitcher

Mining & Smelting, 325 U.S. 335 (1945)............ 26

Kremer v. Chemical Constr. Corp., 456 U.S. 461

ne ETE REL EE CREE CREE OEE ES CEE OUT ET 11, 21, 24

Local 560, IBT v. Eazor Express, Inc., 95 N.J. Super

ai9, 230 A.2d 3521 (App. Div. 1967) ............... 28

Local 153, OPEIU v. Trust Co. of New Jersey, 105 N.J.

es ee SRE DUUE CANA Geb koto 40s ERR EN Es ck aRAR 28

Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95

ROPERS SARA MCERE 1G na do 40l 6 centaAs ex eCiseeneenesne 25

Magnolia Petroleum v. Hunt, 300 U.S 430 (1943)...... 14

Marrese v. American Academy of Orthopaedic Sur-

ee | errr rrry rey ere 20

Martin Rush, Urology Associates, P.A. v. Kuhn, Smith

& Harris, 193 N.J. Super. 389, 474 A.2d 1072

tg, EE EEE OU EOE ee POC Re ny PE ree 10

McDonald v. City of West Branch, 466 U.S. 284

Oa ap SENT SEO ETE ERT EET CETTE TEE eee re eee Ee 22

NLRB v. Donna Lee Sportswear Co., Inc., 836 F.2d 31

Ce Se: COWS nak Wn 64h shdwe py Sa Reebaeae erat yesae 10

NLRB v. Heyman, 541 F.2d 796 (9th Cir. 1976)

TE RTT TT TTT TE TIL COT OTTOCT CLOUT TL: 10, 24, 26

NLRB v. Yellow Freight System, Inc., 930 F.2d 316

I NE his vs bea chen Penmaes passim

Old Colony Trust Co. v. Commissioner, 279 U.S. 716

Ee ee re ere en mat 16

Parsons Steel Inc. v. First Alabama Bank, 474 U.S.

TUNES. 04:60 4 kWe doe oaee ess eka iene 21

TABLE OF AUTHORITIES - Continued

Page

Penntech Papers, Inc. v. NLRB, 706 F.2d 18 (1st Cir.

TUNG AG 00 40s bh d4.9 40 ENS FC gAR RRR ONOES SERIO 10

Prentice v. Atlantic Coast Line Co., 211 U.S. 210

NG as Gis ks chADAD LASER AREA DA Dee RENE. 19, 20

Thomas v. Washington Gas Light Co., 448 U.S. 261

CUE A 6 sek 8040. UNGADD nd RRA OEE) EA ees 14, 20

The Young Engineers, Inc. v. United States Interna-

tional Trade Commission, 721 F.2d 1305 (Fed. Cir.

ASP e reer ye re rs one ers re’ ene 26

United Paperworkers v. Misco, 484 U.S. 29 (1987) ..... 25

United States v. Allen, 27 M.J. 234 (Ct. Mil. App.

errr rr es weep rere Pere er ee 19

United States v. Stauffer Chemical Co., 464 U.S. 165

E5266 K6s 6h AAG OKANSSNE ARE LOE AR BRS 20

United Steelworkers v. American Mfg. Co., 363 U.S.

re eee eer e eer 25

University of Tennessee v. Elliott,

478 U.S. 788 (1986) ..... 6.6 15, 21, 22

STATUTES

IM TE Ws Sse cece esavcceasesnavenevenwenseese 19

SMG TE AIRED occa cs ccnncnccssesanessecassuneacens 12

ns Cane FC) err 12

ek |. eee rar 17

ss | i >... Sennen 16

eS rer ear ee 15

ee Te REOMEED cence nrc csansnnccssnsecacnenences 2

vii

TABLE OF AUTHORITIES - Continued

Page

ee Oe a hy 405 44a ta nncdtanesadewreeceee’ passim

Be is Oe PO hh vanced at keabonn bes eeusbedeetans 12

Pe ii chs iencecesvecrescccctevaneuts 19

Pe SME AED GS ac ccceeccnccnsccccecessseeeesses 18

Be A IIE oon 6 ccc vcnecssceceececdenventanes 3

og ee ere 3

fy 5 rere rere re 21, 24

SP TE ND kws vines ccnsecccccccedsscuseeneus 3, 12

Pan TE OED oa c cca tccacesssesaeessenceseees 25

BP Nes PD acca ca ccccnncccesccsesenssecerecss 25

re A OUD ncn sce cnecncccaseccasencenssans 16

SG Stat. 957, © SOSla) 2... ccs cccccsccccenccccscsvces 16

2A NJS.A. § 24-10... 00. c ccc ccc cecccceueceeuees 2, 10

OTHER AUTHORITIES

Federal Jurisdiction Haiku, 32 Stanf. L. Rev. 229 .... 18

R. Gorman, Basic Text on Labor Law 15 (1976)........ 20

House Report No. 1 on H.R.1, 69th Cong., Ist Sess.

RG 5 8X5 55 KA SOARS K MENS CA beak O6O skeen SCORES 17

Internal Revenue Code of 1939 § 1100 .............. 16

L. Jaffe, Judicial Control Of Administrative Action 87

GSS 2555 ui 00h salen dieses CWWeh ahi bssesRsenes 18

14 Mertens, Law of Federal Income Taxation 50.09

Co ,, ETTUTTRUTTETTU TT ETC TE TREE TTT TTT Tee eer 17

viii

TABLE OF AUTHORITIES - Continued

Page

93 Cong. Rec. 8388 (1947)...... 0... ccc cece ececeess 17

1B Moore, Federal Practice 728-29 (2d ed. 1988)...... 28

Redish, Legislative Courts, Administrative Agencies

and the Northern Pipeline Decision, 1983 Duke L.

Oe ET TS eo Ca 18

13 Wright, Miller & Cooper, Federal Practice &

Procedure 3S (2d edd. 1964)... 2. ccc cccesescccess 17

13 Wright, Miller & Cooper, Federal Practice &

Procedure 37-38 (2d ed. 1984).................0005. 19

18 Wright, Miller & Cooper, Federal Practice &

SN a ES Guan oak onde ew ieeh sax 28

No.

In The

Supreme Court of the United States

October Term, 1990

YELLOW FREIGHT SYSTEM, INC.,

Petitioner,

Vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

Yellow Freight System, Inc., petitions for a writ of

certiorari to review the judgment in this case of the

United States Court of Appeals for the Third Circuit.’

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Third Circuit (reprinted in the Appendix to this Peti-

tion, pp. A. 1-16)? is reported at 930 F.2d 316. The

1 Petitioner is a wholly owned subsidiary of Yellow

Freight System, Inc. of Delaware.

2 Page references with the prefix “A” are to pages of the

Appendix to this Petition. References with the prefix “R” are to

pages of the Record filed in the Court of Appeals.

opinions of the National Labor Relations Board and its

Administrative Law Judge (A. 17-30) are reported at 297

N.L.R.B. No. 50 (1989).

JURISDICTION

The judgment of the United States Court of Appeals

for the Third Circuit was entered on April 11, 1991.

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. Section 1254(1).

STATUTES INVOLVED

1. 28 U.S.C. Section 1738 (the “Full Faith and

Credit” Statute) provides as follows:

The Acts of the legislature of any State,

Territory, or Possession of the United States, or

copies thereof, shall be authenticated by affixing

the seal of such State, Territory or Possession

thereto.

The records and judicial proceedings of any

court of any such State, Territory or Possession,

or copies thereof, shall be proved or admitted in

other courts within the United States and its

Territories and Possessions by the attestation of

the clerk and seal of the court annexed, if a seal

exists, together with a certificate of a judge of

the court that the said attestation is in proper

form.

Such Acts, records and judicial proceedings or

copies thereof, so authenticated, shall have the

same full faith and credit in every court within

the United States and its Territories and Posses-

sions as they have by law or usage in the courts

of such State, Territory or Possession from

which they are taken.

2. 2A N.J.S.A. Section 24-10 provides as follows:

The judgment confirming, modifying or cor-

recting an award or a judgment in any action

under this chapter shall have the same effect, in

all respects, as, and is subject to all the provi-

sions of law relating to, a judgment in any other

action and may be enforced as if rendered in

any other action in the court in which it is

entered.

STATEMENT OF THE CASE

This proceeding was initiated by a charge of unfair

labor practice filed by Lonnie Bedell, alleging that he was

discharged from employment by Petitioner in violation of

Sections 8(a)(1) and 8(a)(3) of the National Labor Rela-

tions Act (“the NLRA” or “the Act”), 29 U.S.C. Sections

158(a)(1) and 158(a)(3). Following issuance of a com-

plaint, a hearing and a decision by an Administrative

Law Judge, the National Labor Relations Board (the

“NLRB” or “the Board”) upheld the complaint, and

ordered Petitioner to reinstate Bedell with back pay. On

petition for enforcement, the United States Court of

Appeals for the Third Circuit enforced the Board’s order.

The jurisdiction of the Court of Appeals rested on Section

10(e) of the NLRA, 29 U.S.C. Section 160(e).

Bedell had been employed as a dockman at Peti-

tioner’s Elizabeth, N.J., terminal. (R. 0420). On February

3, 1988, he was discharged, on the grounds that a few

minutes earlier he had refused to comply with a direct

work order and had “verbally assaulted” Joseph Smidt, a

supervisor. (R. 0421). (Article 47, Section 2 of the applica-

ble collective bargaining agreement specifies “assault on

Employer or his representative during working hours” as

one of the “causes for discharge”. R. 0494). The union

grieved the discharge, denying that any refusal or assault

had occurred (R. 0487), and the matter was submitted to

arbitration under the auspices of the State Board of Medi-

ation. (R. 0484, 0486).

The arbitral proceeding

At the arbitral hearing, Bedell and his union, which

supported his claim, were represented by counsel. (R.

0422, 0487). There were two days of hearings, at which

the parties enjoyed the right to present sworn testimony,

obtain access to relevant documents, cross-examine

adverse witnesses, and offer arguments. A verbatim tran-

script, comprising over 400 pages, was prepared. (R.

0486).

On August 11, 1988, the arbitrator issued an award

upholding the discharge. Noting that the parties’ versions

of the critical events “differ[ed] greatly from each other,”

the arbitrator concluded, first, that the evidence “clearly

and convincingly” established that the language used by

Bedell toward Smidt, in light of the “tone and tenor of his

invective,” exceeded the boundaries of acceptable “shop

talk.” (A. 50). Second, although “such cursing alone”

would not justify discharge, the arbitrator rejected the

position, strongly urged in support of the grievance (A.

49, R. 0389), thai the contractual prohibition on an

“assault” could not apply to a “verbal assault.” “The

ambience of the interaction and the grievant's seething

anger gave particular meaning to his aggressive stance

toward the supervisor;” Bedell’s “physical action toward

his supervisor plac[ing] the supervisor in reasonable fear

of imminent hostile touching, . .. when viewed in combi-

nation with the loud and angry words spoken,” did con-

stitute an assault within the meaning of the collective

agreement, and warranted discharge. (A. 50-51).3

3 The arbitrator specifically found as follows:

The credible testimony established that, after cursing

at his supervisor the grievant made menacing move-

ments towards the supervisor with raised and mov-

ing arms. The supervisor described in a

straightforward, credible manner the fiendish look in

(Continued on following page)

As noted above, the testimony was in conflict on

several critical issues, and determination of the wit-

nesses’ credibility was a major question for the arbitrator

to decide; as counsel for the grievants summed it up, “the

whole case hinges on credibility.” (R. 0404). In light of the

subsequent proceedings, it is especially important to bear

concretely in mind the manner in which the credibility

issue was litigated in arbitration. In addition to placing

the usual reliance on traditional indicia of credibility -

demeanor, opportunity to observe, etc,, (R. 0391-94,

0396-98, R. 0402) — counsel for the grievants emphasized

that the difference between Smidt’s and Bedell’s physical

appearance — the supervisor was 6'2”, 260 lbs, and an

accomplished practitioner of martial arts (R. 0066-67);

Bedell was 5’10”, and 180 lbs “soaking wet” (R. 0395) -

implied that Smidt could not have been placed in “rea-

sonable fear.” In response, Smidt explained that several

people had seen Bedell carrying a gun and that, at least

once, he had threatened someone (R. 0069). Counsel for

the grievunts presented witnesses contradicting this repu-

tation testimony (R. 0307, 0373, 0375) and characterized

Smidt’s testimony on this point as a “fabrication.”

(Continued from previous page)

the grievant’s eyes, from which the supervisor con-

cluded that the grievant was out of control. Whether

an actual battery would have occurred is speculative,

because another employee intervened [and because

of] the hasty retreat of the supervisor... .

.... In summary, verbal abuse alone might not be

sufficient to sustain a discharge, but the grievant's

loud angry cursing at a supervisor, in combination

with his aggressive approach toward his supervisor,

constituted an assault. Although insubordination

may not justify summary discharge, an assault on a

supervisor will. The collective bargaining agreement

is clear and unambiguous with regard to an assault

on management... .

(A. 51-53).

(R. 0399). Finally, Bedell suggested that Smidt had been

singling him out for onerous work assignments (R. 0349),

a suggestion that company counsel sought to undermine

on the ground that Bedell had not filed a grievance in

response. (R. 0412-14).

In that latter connection, what counsel for the griev-

ants made a decision not to do is an essential part of the

facts of the case. Several weeks prior to his discharge,

Bedell had filed charges with the United States Equal

Employment Opportunity Commission (“EEOC”), aileg-

ing that Petitioner had engaged in a series of acts of

discriminatory worsening of his working conditions in

retaliation for his having assisted another employee to

file charges concerning her own treatment. (These are

described at some length at the outset of the Court of

Appeals opinion, A. 3-4, 930 F.2d at 317). Following his

discharge, Bedell filed a second complaint with EEOC,

alleging that the discharge too was a retaliatory act. At

the arbitral hearing, counsel for the grievants advised the

arbitrator that the hearing would be limited “to only the

contractual just cause question.” (R. 0017). However, he

did not elect merely to decline to litigate in arbitration the

question of the alleged violation of statute. Although

acknowledging that the EEOC charges were “related to

the discharge” (R. 0018), he elected as well to decline to

use any of the factual material relating to alleged discrim-

inatory acts done prior to the day of Bedell’s discharge, in

support of his effort to undermine the credibility of the

company’s witnesses with respect to the assault.

Following the arbitrator’s decision, Bedell and his

union filed suit in the Superior Court of New Jersey to

vacate the award, specifically alleging that it was “with-

out foundation in reason or fact and in direct contradic-

tion to the provision of the Collective Bargaining

Agreement.” (R. 0495). On February 10, 1989, the court

dismissed “with prejudice” the action to vacate, and

granted Petitioner’s counterclaim seeking a judgment

confirming the award. (A. 44-46). Bedell and the union

each elected not to seek review of this decision in the

New Jersey Supreme Court.

The Labor Board Proceeding

Bedell had filed a charge with the Regional Director,

NLRB, asserting that the activities that allegedly moti-

vated his discharge were also protected by the NLRA.

Following issuance of a complaint, the General Counsel,

on behalf of Bedell, sought to prove, not only that the

assault was not the motive for the discharge, but that

Bedell had not assaulted Smidt at all, and that Petitioner

had “contrived the account” (A. 31) in order to supply a

colorable ground for an unlawfully motivated discharge.

During four days of hearings, testimony was taken filling

some 900 pages of transcript, of which 766 were devoted

to the testimony of seven witnesses who had testified

previously at the arbitral hearing.

The Administrative Law Judge “discredited” the tes-

timony of Petitioner’s witnesses that Bedell had acted “in

a threatening manner.” (A. 35). Contrary to the arbitrator

on each point, he relied heavily on the disparity in size;

disbelieved the testimony about the gun; and found

Smidt an unpersuasive witness, on both circumstantial

and demeanor grounds. (A. 32). On the basis of these

credibility determinations, he found that the reason given

for the discharge was not only not the actual motive for

it, but that it was a “spurious,” that is, a fabricated

reason, and that its proffer was part of the General Coun--

sel’s prima facie case. (A. 35). He refused to give any credit

to the findings of the arbitrator or the Superior Court, on

the ground that the issue of motivation “was not pre-

sented to the arbitrator.” (A. 38). The arbitrator’s resolu-

tion of the credibility issues bearing on his finding that

the assault did in fact occur was, the ALJ reasoned,

similarly not entitled to be credited because it was “nec-

essarily enmeshed” with evidence that had not been pre-

sented previously. (A. 39).

Petitioner specifically contended that both 28 U.S.C.

Section 1738 and federal common law forbade such

casual disregard of the “specific factual determinations”

made in the arbitral proceedings (R. 0505-10). The Board

rejected this contention without discussion, noting, how-

ever, that the Administrative Law Judge’s conclusion not

to credit Smidt’s claim that Bedell had “behaved in a

threatening manner” was based on “Smidt’s evasive

demeanor while testifying” at the second hearing. (A. 19).

In opposing the Board’s enforcement petition in the

Court of Appeals, Petitioner emphasized its agreement

that judicial confirmation of the arbitral decision does not

preclude the Regional Director from attempting to estab-

lish a discriminatory motive for the discharge. What is

precluded, Petitioner asserted, is disregard of the arbitral

finding that the assault in fact occurred. Put simply, Peti-

tioner’s contention was one of issue preclusion, but not of

claim preclusion. In addition to relying on both statutory

and common-law preclusion, Petitioner argued that sub-

stantive labor law principles, properly applied, required

the Board to apply its deferral rules to this proceeding -

again, only to bar relitigation of the single issue of the

existence of the assault.

Counsel for the Board conceded that “the facts pre-

sented to the arbitrator certainly permitted him to credit

the testimony that an assault occurred” (Court of Appeals

Brief, p. 22), but contended that the Board was nonethe-

less free to relitigate that question because evidence not

presented to the arbitrator might have “alerted him to the

possibility that the same hostility towards Bedell’s pro-

tected activity motivated the Company’s accusation of

assault.” (Ibid). The Board argued that neither 28 U.S.C.

Section 1738 nor common-law preclusion limits the

Board’s discretionary deferral principles.

The Court of Appeals, in enforcing the Board's order,

rested on three mutually reinforcing bases for giving

narrower, rather than broader, scope to the principles of

full faith and credit:

First, the Court held that Section 1738 does not bind

the Board because it is not a “court.” Although the Court

justified this ruling on the ground that “the directive of

Section 1738 has been literally applied” (A. 9, 930 F.2d at

320), it went on to dismiss Petitioner’s reliance on the fact

that the Court of Appeals itself is unquestionably a

“court,” plainly bound by Section 1738, as leading to an

“anomalous” result. (A. 11, 930 F.2d at 320).

Second, having set aside the statute, the Court of

Appeals treated the question of common-law preclusion

as wholly subsumed within that of labor-law deferral and

held that, since the Board had consistently applied its

deferral rules, the decision was within the Board's discre-

tion. (A. 12-16, 930 F.2d at 321-22).

Third, the Court held that neither common-law pre-

clusion nor NLRA deferral is applicable where evidence

not presented to the arbitrator might have persuaded him

to rule differently on the credibility issues affecting reso-

lution of the grievance. (A. 15-16, 930 F.2d at 322).

REASONS FOR ALLOWANCE OF THE WRIT

A. The decision below, that the Court of Appeals

in reviewing decisions of the National Labor

Relations Board is not subject to the mandate

of 28 U.S.C. Section 1738, because the Board is

termed an “agency” rather than a “court,” is in

conflict with a decision of the Court of Appeals

for the Eighth Circuit, and presents an impor-

tant issue of federal law that should be

resolved by this Court.

Section 1738 of the Judicial Code provides in relevant

part as follows:

The records and judicial proceedings of any

court of any... State... shall have the same

full faith and credit in every court within the

United States . . . as they have by law or usage

in the courts of such State . . . from which they

are taken.

By this statute, the successor to one enacted over 200

years ago, “Congress has specifically required all federal

courts to give preclusive effect to state-court judgments

whenever the courts of the State from which the judgments

emerged would do so. ...” Allen v. McCurry, 449 U.S. 90, 96

(1980). Neither the Board nor the Court of Appeals has

questioned Petitioner’s assertion that, by the law of New

Jersey, the decision of the Superior Court confirming the

arbitral award estops Bedell and those in privity with him

from relitigating the question whether he assaulted his

supervisor, Joseph Smidt.* Moreover, the Court of Appeals

cited approvingly (A. 13, 930 F.2d at 321) decisions of other

Circuits holding that, where Board proceedings are triggered

by a charge filed by a person or organization that had

previously suffered an adverse decision in a litigated pro-

ceeding against the respondent, the General Counsel is in

“privity” with the charging party, so as to make applicable

the law of issue preclusion.®

4 The judgment confirming an [arbitration]

award . . . shall have the same effect, in all respects

as, and is subject to all the provisions of law relating

to, a judgment in any other action and may be

enforced as if rendered in any other action in the

court in which it is enforced.

24 N.J.S.A. Sec. 24-10. See also Martin Rush, Urology Associ-

ates, P.A. v. Kuhn, Smith & Harris, 193 N.J. Super. 389, 395, 474

A.2d 1072, 1075 (1984):

When part of an entire controversy has been decided in

arbitration and part remains to be decided in court,

applying the collateral estoppel doctrine would be a

major step toward eliminating wasteful and debilitating

litigation of issues in court that have already been

decided in arbitration.

> NLRB v. Heyman, 541 F.2d 796, 799 (9th Cir. 1976); NLRB v.

Donna-Lee Sportswear Co., Inc., 836 F.2d 31 (Ist Cir. 1987). See

also, to like effect (although holding that the requisite identity of

issues was lacking), Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 23

(1st Cir. 1983).

“{T]his Court has consistently emphasized the impor-

tance of the related doctrines of res judicata and collateral

estoppel in fulfilling the purpose for which civil courts

had been established, the conclusive resolution of dis-

putes within their jurisdiction.” Kremer v. Chemical Constr.

Corp., 456 U.S. 461, 466 n.6 (1982). In light of this princi-

ple, the decision below far too casually dismissed the

applicability of Section 1738.

The Court of Appeals held the Board exempt because

“the directive of section 1738 has been literally applied”

(A. 9, 930 F.2d at 320), and does not bind any tribunal not

termed a “court.” But, if that is so, may the same directive

be selectively disregarded, so as not to bind a tribunal

that is unquestionably a “court”? The statute is hardly

being “literally applied” when it is held not to apply to

the Court of Appeals itself on the ground (A. 11, 930 F.2d

at 320) that it would be “anomalous” for the Court of

Appeals to respect the mandate, because it would be

“forcing” the Board to do what the statute does not

require in order to obtain judicial enforcement of its

decisions. Congress has explicitly mandated the Courts of

Appeals to give full faith and credit to the judgments of

State courts; see the reference in Allen v. McCurry, supra,

to “all federal courts.” The inapplicability of the statute to

administrative agencies, even if held to exist, cannot be

thought to reflect an affirmative legislative intention to

exempt them from the strictures of full faith and credit.® If,

as a result of the stricture imposed on reviewing courts,

the Labor Board were to adopt the practice of giving full

faith and credit to State court decisions, no statutory

command is violated.? Any perceived “anomaly” is for

6 Compare the Board’s “implied repeal” argument, p. 20

n.18, infra.

7 Even on its own terms, the Court of Appeals exaggerated

the consequences of a decision to give Section 1738 a consis-

tently literal interpretation. The Board would be free to

(Continued on following page)

Congress to resolve, and to decide whether to do so by

broadening or by narrowing the reach of the statute.®

It should be borne in mind that Congress has quite

advertantly refused to require litigants to comply with

Board orders, declining even to place on unsuccessful

respondents desiring to challenge a Board order the

obligation to seek judicial review. By reason of the

explicit provisions of Section 10(e) of the Act, 29 U.S.C.

Section 160(e), the General Counsel has the burden of

seeking and obtaining a judicial enforcement order before

any obligation to comply with a Board decision arises.

Compare the treatment of the Federal Trade Commission,

15 U.S.C. Section 45(g).9

The decision of the Court of Appeals that it is exempt

from the requirement of Section 1738 is in direct conflict

with the articulated premise of the decision of the Court

(Continued from previous page)

continue to make, and to have enforced, factual determinations

without regard to the statutory requirement of full faith and

credit, in those cases in which substantial evidence otherwise

existed to support the result.

8 Indeed, the terms of 28 U.S.C. Sec. 1739, a companion

provision to Sec. 1738, applicable to “every court and office

within the United States,” plainly require the Board to give full

faith and credit to the “nonjudicial records” of any State “pub-

lic office.” See e.g., Bennett v. Schweiker, 532 F. Supp. 837,

839-40 (D.D.C. 1982) (birth certificate). The “record” in ques-

tion, though nonjudicial, could well embody the resolution of a

contested matter, and if there is an “anomaly” it is that the

records of a State office of “vital statistics” bind the Board, but

those of its Superior Court do not, and that the Superior Court

decision in the case at bar would bind a Court of Appeals

reviewing a District Court judgment, but not that of the NLRB.

9 “An order of the Commission to cease and desist shall

become final .. . upon the expiration of the time allowed for

filing a petition for review, if no such petition has been duly

filed within such time.” 15 U.S.C. Sec. 45(g)(1).

of Appeals for the Eighth Circuit in Botz v. Helvering, 134

F.2d 538 (8th Cir. 1943). The question in that case con-

cerned the effect of the judgment of a Missouri court in a

tax deficiency proceeding before the Board of Tax

Appeals. The Court of Appeals needed only to quote the

language of the predecessor of Section 1738 to draw the

inference: “Therefore our inquiry is as to what effect

would be accorded to these judgments in Missouri

courts.” Id. at 544. Whether the court thought the Board

similarly bound is not clear from the opinion, but what is

clear is that the court saw nothing “anomalous” in recog-

nizing that, whatever the case as to the Board, the statute

was unmistakably addressed to it.

The self-contradictory nature of the Court of

Appeals’ reasoning, its failure to give effect to the unde-

niably applicable language of this important statute, and

the direct conflict with the approach of the Eighth Circuit

decision in Botz, make the decision below an appropriate

one for review by this Court on certiorari.’

B. The decision below, that the National Labor Rela-

tions Board is not subject to the mandate of 28

U.S.C. Section 1738, because it is termed an

“agency” rather than a “court,” is in conflict with

the settled judicial practice of this and other

courts, and presents an important issue of federal

law that should be resolved by this Court.

The decision of the Court of Appeals that the Board

itself is exempt from statutory preclusion is inconsistent

10 The fact that review of Board findings of fact is limited

to the determination whether “substantial evidence” exists to

support the findings does not provide a basis for escaping the

mandate of Section 1738. Petitioner specifically argued to the

Court of Appeals that, on the assumption that the assault did

in fact occur, there was no substantial evidence to support the

Board order. The Court of Appeals did not rule on this conten-

tion. (A. 16 n.4, 930 F.2d at 322 n.4.)

with the long-standing practice of this and other courts,

is based on an improper reading of this Court’s prece-

dents, and fails to supply a workable rationale by which

the scope of Section 1738 can be judged. These failings

provide an independent basis for granting review.

Thomas v. Washington Gas Light Co., 448 U.S. 261

(1980), reviewed the decision of a federal agency, the

Benefits Review Board, awarding workers’ compensation

benefits under the District of Columbia Workmen’s Com-

pensation Act, as against a claim that full faith and credit

was denied the prior award of benefits under the Virginia

statute. As the Court recognized, 448 U.S. at 266 n.10, the

issue necessarily arose under 28 U.S.C. Section 1738

because the Full Faith and Credit Clause of the Constitu-

tion is in terms applicable only to the States. The Justices

divided three ways on the question what full faith and

credit requires in cases of successive workers’ compensa-

tion awards, but none of the opinions contains the slight-

est suggestion that, by reason of the name or status of the

Benefits Review Board, full faith and credit was not

owing under the statute to the Virginia judgment.'!

Indeed, Petitioner believes that, in the long line of cases

struggling with the meaning and authoritativeness of this

Court’s decisions in Magnolia Petroleum v. Hunt, 320 US.

430 (1943), and Industrial Commission v. McCartin, 330 U.S.

622 (1947), there is no indication that the applicablility of

Section 1738 is impaired by the administrative nature of

the tribunal in which the claim of preclusion is made. In

at least one decision, moreover, the highest court of a

State has taken a similar view; see Evans v. Asphalt Roads

& Materials Co., 194 Va. 165, 166-67,-72 S.E.2d 321, 322

(1952), holding the Virginia Industrial Commission bound

by full faith and credit.

' As Justice Rehnquist observed, in dissent but without

contradiction on this point, the claim of full faith and credit

was to a judgment and not merely a statute. 448 U.S. at 292.

The Court of Appeals was led to disregard so readily

this settled practice by too facile a reliance on University

of Tennessee v. Elliott, 478 U.S. 788 (1986). That decision

held Section 1738 inapplicable to “unreviewed state

administrative factfinding,” id., at 794, and the Court of

Appeals thought that the “same analysis” was applicable

here. (A. 9, 930 F.2d at 320). But the Court ignored signifi-

cant distinctions of both substance and language. First, it

is one thing to say, as Elliott teaches, that Congress did

not require courts to accord to “lesser” bodies the respect

of preclusion law, even though the law of the rendering

State may do so. But we are presented with the converse

situation, where the decision of a court is invoked in a

subsequent administrative proceeding, and it is quite

another matter to conclude that, because of its “lesser”

status, an administrative agency may disregard the deci-

sion of a court. The “literalness” of Elliott is consistent

with, while that of the Court of Appeals is at war with,

respect for the rationality of the Congressional mandate.

Beyond that, the words themselves are not so confin-

ing as the Court of Appeals’ brief treatment suggests.

Section 1738 speaks of decisions rendered in “judicial

proceedings of any court of” any State, but, in mandating

full faith and credit to those proceedings, it refers to

“every court within” the United States. For purposes of

Title 28, Congress has defined “court of the United

States” as limited to those in which judges “hold office

during good behavior,” 28 U.S.C. Section 451, that is, to

Article III, or “constitutional,” courts. “Legislative”

courts, although they are therefore not “courts of” the

United States, presumably are “courts within” the United

States, and subject to Section 1738; consistent with the

rationale suggested in the preceding paragraph’s discus-

sion of Elliott, the lesser status of legislative courts does

not exempt them from the binding effect of the full faith

and credit requirement.

a”

If “administrative agencies,” however, are to be

exempt, what is it that establishes a particular body as a

(legislative) “court” or as an “agency”? Does Congress

“make [a] board a court by changing its name,” as this

Court suggested with respect to the Customs Court in Ex

parte Bakelite Corp., 279 U.S. 438, 457 (1929)?!2 The appar-

ent simplicity of such a response is drawn in question by

the problematic quality of a decision that would hold that

Section 1738 is at present inapplicable to the Board, but

would become applicable were Congress (for wholly

unrelated reasons) to change its name to, for example, the

Court of Labor-Management Relations.

The evolution of the Tax Court lays bare the infirmity

of such a simplistic response. The Board of Tax Appeals

was established by Congress as “an independent agency

in the executive branch of the Government” in 1924 (Rev-

enue Act of 1924, Sec. 900(k), 43 Stat. 338). Its name was

changed to the Tax Court by the Revenue Act of 1942, Sec.

504(a), 56 Stat. 957. A simple literal view presumably

would hold that the Board of Tax Appeals, not being a

“court,” was not bound by Section 1738, but that it

became subject to the requirement of statutory full faith

and credit in 1942 by reason of the change in its name.

The difficulty is not merely the artificiality of such a

resolution of the question of characterization.'? It is not

12 The Court was not of course construing the Full Faith

and Credit Act.

The Customs Court had been called the Board of General

Appraisers, and “was an executive agency.” Ex parte Bakelite

Corp., supra. When Congress changed its name, “there was no

change in powers, duties or personnel.” Ibid. Congress subse-

quently elevated the Customs Court to the status of an Article

III court, with judges holding office during good behavior, and

in 1980 once again changed its name, to the Court of Interna-

tional Trade. 28 U.S.C. Sec. 251.

13 Compare Old Colony Trust Co. v. Commissioner, 279 U.S.

716, 725 (1929) (“The Board of Tax Appeals is not a court. It is

(Continued on following page)

merely that the change in name had a wholly non-sub-

stantive motivation.'4 It is that at the precise time that

Congress changed the name of the tribunal from “Board”

to “Court” it retained the description of the body as an

“independent agency in the executive branch.” Section

1100 of the Internal Revenue Code of 1939, after its

amendment by the 1942 Act, read as follows:

The Board of Tax Appeals (hereinafter referred

to as the “Board”) shall be continued as an

independent agency in the Executive Branch of

the Government. The Board shall be known as

(Continued from previous page)

an executive or administrative board. . . . ”); Commissioner v.

Gooch Milling & Elevator Co., 320 U.S. 418 (1943) (quoting and

relying on the legislative characterization of the Board as an

“agency,” id. at 420, the Court noted Congress’ intention that

the change in name (then recently adopted) “was to have no

effect on the jurisdiction, powers and duties of the agency,” id.

at 418 n.1); 13 Wright, Miller & Cooper, Federal Practice and

Procedure 35 (2d ed. 1984) (“[T]he Tax Court of the United

States was not a court at all, despite its name, but was an

adminstrative agency ...”); and 14 Mertens, Law of Federal

Income Taxation 50.09 (1991) (“[T]he Tax Court . . . remained an

independent agency of the executive branch of the Govern-

ment”), with Blair v. Oesterlein Machine Co., 275 U.S. 220, 227

(1927) (“[A]n examination of the [statutory provisions] can

leave no doubt that they were intended to confer upon [the

Board] appellate powers which are judicial in character”);

House Report No. 1 on H.R. 1, 69th Cong., Ist Sess. 20 (1926)

(the decisions of the Board of Tax Appeals are “judicial and not

legislative or administrative decisions”).

In 1969 Congress termed the Tax Court a court

“established ... under Article I” (26 U.S.C. Sec. 7441), that is, a

legislative court.

14 See 93 Cong. Rec. 8388 (1947) (remarks of Rep. Dingell:

“(W]e were told by members of the Board of Tax Appeals that

[the name change] would enable them more readily to obtain

space in Federal courthouses... . ”).

pecais ¢

the Tax Court of the United States and the mem-

bers thereof shall be known as the presiding

judge and the judges of the Tax Court of the

United States.

A “Board” “shall be known” as a “Court,” but “shall

continue to be” an “agency!” It appears, then, on the face

of the United States Code, that the categories, court and

agency, are not employed by the Legislature as neces-

sarily mutually exclusive.'>

The necessary inference is that it is not the legislative

adoption of the name, “court,” that triggers the appli-

cability of Section 1738; the literal words of Section 1738,

which apply it to all “courts within the United States,” do

not invariably resolve the matter.

The parallel between the Tax Court and the NLRB is

compelling. Congress has described the Board, much as it

did the Tax Court, as “an agency of the United States,”

NLRA Section 3(a), 29 U.S.C. Section 153(a). If, as our

discussion of the Tax Court establishes, the presence of

the talismanic word, “court,” does not by itself make the

full faith and credit statute applicable, the Court of

Appeals’ version of a “literal” approach is undermined,

1S A leading student of federal jurisdiction concludes that

“the Court cannot logically distinguish the work of non-Article

Ill courts from that of administrative adjudicatory bodies.”

Redish, Legislative Courts, Administrative Agencies, and the

Northern Pipeline Decision, 1983 Duke L.J. 197, 201. A widely

respected administrative law scholar, in discussing “the great

case of Crowell v. Benson,” has described it as presenting the

question whether Congress could confer certain authority on a

“‘non-Article III’ court, in this case an ‘administrative

agency’....” L. Jaffe, Judicial Control of Administrative Action

87 (1965). Finally, the conclusion of Professor Kenneth Karst is

no less apt for its irreverence: “Legislative courts are but

agencies in drag; Glidden is not paint.” Federal Jurisdiction

Haiku, 32 Stanf. L. Rev. 229, 230 (1979).

Bh IRS AE Ne ns To

ins! ok te Rte ln Re Mn AS

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and the absence of the talismanic word, “court,” is no

more controlling than its presence.'®

The need is rather to make a more textured resolu-

tion of the question of characterization. There is respected

analogous authority for a more functional approach. The

Anti-Injunction Act, 28 U.S.C. Sec. 2283, bars federal

injunctions against proceedings in a “State court,” except

in specified circumstances. In Prentice v. Atlantic Coast

Line Co., 211 U.S. 210 (1908), this Court, in holding the

Act inapplicable to rate-making proceedings of the Vir-

ginia Corporation Commission, first accepted arguendo

that the function, duties, and procedures of the Commis-

sion sufficed to establish it as a “court” within the mean-

ing of the federal statute notwithstanding its name, 211

U.S. at 224, holding nonetheless that the Commission was

not acting as a court in the proceeding in question,

because rate-making was “legislative in nature.” Id. at

226. Justice Holmes, for the Court, wrote:

Proceedings legislative in nature are not pro-

ceedings in a court, within the meaning of [Sec-

tion 2283], no matter what may be the general or

dominant character of the body in which they

may take place... . That question depends not

upon the character of the body, but upon the

character of the proceedings. 4

16 The United States Court of Military Appeals, itself a

“legislative court” (see 10 U.S.C. Sec. 867) and termed by a

leading treatise “a part of the government of the armed

forces,” 13 Wright, Miller & Cooper, Federal Practice and Pro-

cedure 37-38 (2d ed.1984), has ruled that not only it but the

military courts-martials as well are bound by Sec. 1738 to give

full faith and credit to State court judgments. United States v.

Allen, 27 M.J. 234, 239 (Ct. Mil. App. 1988).

at 3

Ibid. It cannot be doubted that, however the “general or

dominant character” of the NLRB may be characterized,

unfair labor practice proceedings are judicial in nature.'”

The functional approach that this Court took in Pren-

tice to the question of the meaning of the word, “court,”

contrasts sharply with the woodenly literal approach of

the Court of Appeals in the instant case. The selectivity of

the Court’s literalness renders its decision doubly prob-

lematic. The premises of this Court’s decision in Thomas,

supra, of the Eighth Circuit’s decision in Botz, supra, and

of the Virginia decision in Evans, supra, although articu-

lated without discussion, are unmistakably in conflict

with the analysis of the decision below. Moreover, the

reasoning of the Court of Appeals is quite explicit, and

the disruptive ripples of its decision will be widely felt.

This case is therefore an appropriate vehicle in which to

resolve the question of the applicability of Section 1738 to

NLRB proceedings.'8

17 “The National Labor Relations Board makes its deci-

sions in representation and unfair labor practice cases in an

adjudicatory or court-like setting.” R. Gorman, Basic Text on

Labor Law 15 (1976).

18 The Court of Appeals, perhaps evidencing its uneasi-

ness with its selective literalness, attempted to find “sound

policy reasons” for its conclusion in the need to prevent vary-

ing State preclusion rules from undermining the federal inter-

est in uniform enforcement of federal labor law. (A. 10, 930

F.2d at 320). This reasoning fails to give weight to this Court’s

decision in Marrese v. American Academy of Orthopaedic Sur-

geons, 470 U.S. 373 (1985), giving full effect to Section 1738 in

antitrust cases, explicitly committed by Congress to exclusive

federal-court jurisdiction. Cf. United States v. Stauffer Chemi-

cal Co., 464 U.S. 165, 174 (1984), declining to consider, as not

necessary to resolve in the case at bar, the argument, there

(Continued on following page)

Pe eee ce Se ee Sone

Fn Pan Se at a Mier tie tas, so aati ital tie oS

tp PRET Ae OL LS ts es OLE TOIL OE DO Oa Mtb. Myr aes aie oleae AG, As. 0

C. The decision below, that the principles of com-

mon-law preclusion do not govern NLRB pro-

ceedings independently of the Board’s

discretionary deferral rules, presents an impor-

tant issue of federal law that has not been, but

should be, resolved by this Court.

The Court of Appeals acknowledged, but paid only

lip service to, the settled principle established by this

Court that the inapplicability of Section 1738 does not

end the inquiry as to preclusion. The Court began by

quoting (A. 11, 930 F.2d at 320- 21) University of Tennessee

v. Elliott, supra, where this Court noted: “[W]e have fre-

quently fashioned federal common law rules of preclu-

sion in the absence of a governing statute.” 478 U.S. at

794. However, the Court of Appeals went on to treat the

principle as wholly subsumed within the scope of NLRB

deferral under federal labor policy (see A. 12-16, 930 F.2d

at 321-22), reviewable only for abuse of discretion, and

(Continued from previous page)

made with respect to the Environmental Protection Agency,

that “because EPA is a federal agency charged with administer-

ing a body of law nationwide, the application of collateral

estoppel against it will require EPA to apply different rules to

similarly situated parties.”

The Court of Appeals did not pass upon Respondent's

contention that NLRA Section 10(a), 29 U.S.C. Sec. 160(a),

constitutes an “implied repeal” of the Full Faith and Credit

Statute. (See A. 11 n.3, 930 F.2d at 320 n.3). This Court’s

decisions in Allen v. McCurry, 449 U.S. 90 (1980), and Kremer

v. Chemical Constr. Corp., 456 U.S. 461 (1982), establish that

the Board’s contention is founded on an invalid premise. As

such, it gives “unwarrantedly short shrift to the important

values of federalism and comity embodied in the Full Faith

and Credit Act.” Parsons Steel, Inc. v. First Alabama Bank, 474

U.S. 518, 523 (1986) (emphasizing the necessity of construing a

later statute consistently with Section 1738 “whenever possi-

ble,” id. at 524).

22 |

held that, at least as a general matter, such review is

limited to the question whether the Board applied its own

deferral rules inconsistently. (A. 16, 930 F.2d at 322).

This decision effectively reads common-law preclu-

sion out of the NLRA. Petitioner submits that it is plainly |

inconsistent with principles laid down in a series of deci- |

sions of this Court, and that the question of federal law

presented is an important one, warranting resolution by

this Court.

The two areas, common-law preclusion and labor law

deferral, are of course related. As Petitioner will argue

more fully in the event that this Petition is granted, the

relevant Supreme Court precedents spelling out the con-

tours of common-law preclusion point the inquiry toward |

the particularity of the applicable substantive statute and

the relative efficacy of arbitration and litigation to resolve

the question at issue, and these are also matters of signifi-

cance in the shaping of labor law deferral principles.'?

ee Eee - -

19 The specific question, the law governing judicially con-

firmed arbitration decisions drawn in question in proceedings

before the NLRB, has not yet been adjudicated by this Court,

but the inquiry is illuminated by a series of five highly relevant

decisions, culminating in the recent ruling in Gilmer v. Inter-

state/Johnson Lane Corp., ___ U.S. __, 111 S$. Ct. 1647 (1991).

See also Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974);

University of Tennessee v. Elliott, supra; Barrentine v.

Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981);

McDonald v. City of West Branch, 466 U.S. 284 (1984). These

decisions, involving administrative as well as arbitral proceed-

ings, and litigation arising under four federal statutes, make

relevant two areas of inquiry: the purposes and structure of the

specific statute involved, and the suitability of the arbitral

process to resolve fairly the particular kind of question

involved. Close attention to the facts and rationales of these

precedents, Petitioner will argue in its brief should certiorari

(Continued on following page)

ac eeaaneia iannemaaaaaamanameaiaiaaiiaiiiiea |

The critical difference, however, between a judicially

developed law of judgments, applicable to Labor Board

proceedings as to all others, and a Board-developed law

of deferral, is the weight to be given the Board’s decision

on appellate review.

It is exactly this difference that the Court of Appeals,

by choosing to treat Petitioner’s common-law preclusion

contention as raising only deferral issues, has elided. The

collateral estoppel effect of a State court judgment is not

so easily swept within the ambit of Board discretion. The

determination of the effect of the law of common-law

preclusion is for courts to make as a question of law,

indeed, as a question of the federal law of judgments, not

of labor law. It is not a matter on which the Board has any

relevant expertise. Bearing in mind that the arbitral deci-

sion was confirmed in court, and that the holding that

statutory preclusion is inapplicable was based on a nar-

rowly literal reading of Section 1738, the case for com-

mon-law preclusion should have been deemed at its

strongest. Instead, the Court of Appeals collapsed it into

the Board’s discretionary deferral jurisprudence.?°

(Continued from previous page)

be granted, makes clear the merit in its common-law preclu-

sion claim. Because of the grounds of its ruling, the Court of

\ppeals sidestepped this question.

“hould its petition be granted, Petitioner will also present

its givunds for contending that, independently of its statutory

and common-law preclusion contentions, under applicable

labor law principles the Board’s refusal to defer to the specific

factual determination of the arbitrator in this case should have

been reversed by the Court of Appeals as an abuse of discre-

tion.

20 The Court of Appeals raised but did not resolve the

question whether the limited scope of judicial review of arbi-

tral decisions, adhered to in New Jersey as in most jurisdic-

tions, might provide a basis for holding Section 1738

(Continued on following page)

The Court of Appeals found in NLRA Section 10(a)?!

warrant for its de facto abrogation of common-law preclu-

sion. (A. 13, 930 F.2d at 321). In giving Section 10(a) this

unprecedentedly broad scope, this decision unnecessarily

sets up a conflict between the principles of the NLRA and

the principles of common-law preclusion adopted by this

Court. Its stance disregards the totality of the Legisla-

ture’s labor-law enactments, and conflicts with the

approach taken by the Court of Appeals for the Ninth

Circuit in NLRB v. Heyman, 541 F.2d 796 (1976).

More than forty years ago, this Court made explicit

its understanding that “Section 10(a) was designed, as its

language declares, merely to preclude conflict in the

administration of remedies for the practices proscribed

by Section 8.” Algoma Plywood & Veneer Co. v. NLRB, 336

U.S. 301, 306 (1949). Petitioner has taken every available

opportunity to make clear to the ALJ, the Board, and the

Court of Appeals its acknowledgment that it is raising a

claim of issue preclusion only; the authority of the Board

to decide whether Bedell was discharged discriminatorily,

notwithstanding his having committed a verbal assault

(Continued from previous page)

inapplicable. (A. 8-9, 930 F.2d at 319-20). As two Circuit Courts

have squarely held, Caldeira v. County of Kauai, 866 F.2d 1175,

1178-79 (9th Cir. 1989); Gorin v. Osborne, 756 F.2d 834 (11th

Cir. 1985), such a position is plainly foreclosed by this Court’s

decision in Kremer v. Chemical Constr. Corp., supra, at 480

n.21.

21 Section 10(a) reads, in relevant part, as follows:

The Board is empowered, as hereinafter provided, to

prevent any person from engaging in any unfair

labor practice (listed in section 8) affecting com-

merce. This power shall not be affected by any other

means of adjustment or prevention that has been or

may be established by agreement, law, or other-

wise...»

29 U.S.C. Sec. 160(a).

on his supervisor, is not being challenged. No “conflict

. in remedies” is in contemplation.

In reading Section 10(a) to displace common-law pre-

clusion principles except as the Board may choose to

follow them, the Court of Appeals lost sight of the fact

that the arbitration proceeding in this case, carried out

pursuant to the arbitration clause of the collective agree-

ment between petitioner and Bedell’s union, was an

action to enforce a contract between the parties and was

therefore governed by Section 301(a) of the Labor-Man-

agement Relations Act, 1947, 29 U.S.C. Section 185(a).2?

As such, it implicated a second federal statute, LMRA

Section 203(d),?3 the significance of which the Court of

Appeals failed to take into account. Giving full effect to

the collateral estoppel aspects of arbitral decisions, espe-

cially those confirmed in court, integrates the interest of

the Board under Section 10(a) in remaining able to adju-

dicate claims of unfair labor practice with the respect that

Sections 203(d) and 301(a) give to the arbitral process for

the resolution for breach-of-contract claims. See, e.g.,

United Paperworkers v. Misco, 484 U.S. 29, 37 (1987). As the

Court of Appeals for the Ninth Circuit has held:

(T]he jurisdictional grant within Section 301 car-

ries with it . . . the powers necessary to enforce

judgments and to give judgments effect in such

quasi-judicial forums as the NLRB, through the

application of such doctrines as res judicata or

22 See, e.g., Local 174, Teamsters v. Lucas Flour Co., 369

U.S. 95 (1962); United Steelworkers v. American Mfg. Co., 363

U.S. 564 (1960).

23 Final adjustment by a method agreed upon by the

parties is hereby declared to be the desirable method

for settlement of grievance disputes arising over the

application or interpretation of an existing collective-

bargaining agreement.

29 U.S.C. Sec 173(d).

collateral estoppel. . . . Although the authority

of the Board to deal with an unfair labor prac-

tice which also violates a collective bargaining

agreement is not displaced by Section 301, the

Board’s authority does not supplant the jurisdic-

tion of the courts... .

NLRB v. Heyman, 541 F.2d 796, 799 (9th Cir. 1976).

Although the Court of Appeals cited this decision as

authority for the specific principle that the General Coun-

sel is in privity with the charging party for preclusion

purposes (A. 12, 930 F.2d at 321), the Court’s treatment of

the issue of common-law preclusion contradicts the more

fundamental point expressed in the Heyman decision.?4

24 “Finality to litigation is an end to be desired as well in

proceedings to which an administrative body is a party as in

exclusively private litigation.” International Union of Mine

Workers v. Eagle-Pitcher Mining and Smelting Co., 325 U.S.

335, 340 (1945).

The Court of Appeals appears not only to have forgotten the

salience of these words, but of its own prior words, which compel-

lingly articulate the basis for holding administrative tribunals

bound to follow the rules of common-law issue preclusion:

[T]he same policy reasons which underlie use of

collateral estoppel in judicial proceedings are

equally applicable when the administrative body

acts as an adjudicatory body. It is well established

that the doctrine of collateral estoppel contributes to

efficient judicial administration, serving the public

interest in judicial economy as well as the parties’

interests in finality, certainty of affairs and avoidance

of unnecessary relitigation.

Chisholm v. Defense Logistics Agency, 656 F.2d 42, 46 (3d Cir.

1981) (Sloviter, J.). See also the perception of the Court of

Appeals for the Federal Circuit: “[T]he evils of vexacious liti-

gation and waste of resources are no less serious because the

second proceeding is before an administrative tribunal.” The

Young Engineers, Inc. v. United States International Trade

Commission, 721 F.2d 1305, 1315 (Fed. Cir. 1983).

Finally, having first accomplished an end-run around

statutory preclusion through the selective literclness of its

approach, and then effected a de facto elimination of the

principles of common-law preclusion from Labor Board

jurisprudence, the Court of Appeals concluded with an anal-

ysis of the deferral question that constitutes a disregard or

rejection of a central aspect of the concept of issue preclu-

sion. Noting that the Board’s jurisprudence calls for claim-

preclusive deferral only when the arbitrator “has adequately

considered the unfair labor practice issue” (A. 14, 930 F2d at

321), the Court held that deferral regarding “specific facts

found by the arbitrator” (that is, issue preclusion) was inap-

propriate “because the evidence related to the unfair labor

practice claim . . . was not presented to the arbitrator.” (A.

14-15, 930 F.2d at 322). With such evidence, the Court rea-

soned, the arbitrator might have resolved differently the

critical issues of credibility bearing on the question whether

there was “cause” for discharge under the collective agree-

ment. Ibid.

The Court’s analysis illustrates the hazard of collaps-

ing the law of judgments into that of “deferral.” The

question whether there was an unfair labor practice,

because the employer acted from a motive forbidden by

the Act, was not “inadequately” litigated in arbitration; it

was not litigated at all, and Petitioner has consistently

acknowledged that the Board was the proper forum in

which it could be adjudicated. The question whether a

verbal assault occurred was litigated, and adjudicated, in

arbitration, fully and fairly in accordance with the tactical

decisions of counsel for both sides and the unchallenged

evidentiary rulings of the arbitrator. If the concept of

issue preclusion means anything, it means that references

to the “inadequacy” of the prior determination are insuf-

ficient to warrant relitigation of that question. To use the

existence of a proper basis for denying claim preclusion

as grounds for denying issue preclusion is tantamount to

depriving issue preclusion of any independent signifi-

cance. The holding that the General Counsel could

relitigate the question whether a verbal assault had been

committed in seeking to establish an improper motive,

because evidence not offered by counsel for the grievants

might have persuaded the arbitrator to disbelieve the

company’s witnesses to the assault, is nothing less, how-

ever bland and fact-specific it initially appears, than a

lethal thrust at the core of the law of issue preclusion.

Counsel for tie grievants, in challenging the credibility

of Petitioner’s witnesses, chose not to use what the ALJ

described as “any of the matters involved in Bedell’s EEOC

charge” (A. 28), even though counsel had acknowledged that

they were “related to the discharge” (R. 0018). Of course, any

lawyer would weicome a chance to try a case aided by what

he or she could learn from an earlier failed attempt. The law

of issue preclusion is designed in significant part to deny

counsel precisely that opportunity. It is not surprising, there-

fore, that hornbook law makes clear the infirmity in the

Court of Appeal’s analysis.?°

25 If [an issuc] has been determined in a former action, it

is binding notwithstanding the parties litigant may have

omitted to urge for or against it matters which, if urged,

would have produced an opposite result.

1B Moore, Federal Practice 728-29 (2d ed. 1988).

The values of preclusion would be lost if proof of the

quality of the decision were . . . permitted to the

party opposing it. .. . [T]he opportunity to try this

question would undermine any ability to rely on the

finality of the first determination.

18 Wright et al, Federal Practice and Procedure 216 (1981).

The appellate courts of New Jersey, whose view of the law

of issue preclusion is most relevant here, have specifically

distinguished between a “clearly mistaken” factual determina-

tion, which suffices to undermine the conclusiveness of an

arbitral determination, and situations “where the arbitrator

bases his decision on one party’s version of the facts, finding

(Continued on following page)

The arbitrator explained the basis for his discounting

Bedell’s credibility with respect to the assault. (A. 52).

The Court of Appeals opined that a different record

might have persuaded him that it was Smidt’s and not

Bedell’s credibility that was suspect. Perhaps so, perhaps

not. The second time around, Bedell, now a more experi-

enced witness, was able to persuade a different trier of

fact that he was the victim of Smidt’s fabricating the

entire episode, presumably as part of a company-wide

conspiracy.?6 This, Respondent submits, the law of issue

preclusion does not countenance.

The Court of Appeals’ ruling is not merely a factual

disagreement but a fundamental shriveling of both the range

of application and the content of the common-law of issue

preclusion.?”? As such, it warrants review by this Court.?*

(Continued from previous page)

that version to be credible,” which do not. Compare Local 560,

IBT v. Eazor Express Inc, 95 N.J. Super. 219, 230 A.2d 521, 525

(App. Div. 1967), with Local 153, OPEIU v. Trust Co. of New

Jersey, 105 N.J. 442, 522 A.2d 992, 996 n.1 (1987). This declara-

tion of New Jersey law only, of course, gives specific expres-

sion to what is central to the entire idea of issue preclusion. In

the case at bar, the decision of the Superior Court confirming

the award adjudicated that a subsequent attack on the eviden-

tiary basis of the arbitrator’s conclusions was not permissible.

26 Compare the judgment of the arbitrator, that Smidt

testified “in a straightforward, credible manner” (supra, p. 4,

n.3), with that of the ALJ, described by the Board as relying on

Smidt’s “evasive demeanor” (supra, p. 8).

27 The Court’s reasoning thus contradicts its seeming res-

ervation of the question whether, apart from its own deferral

rules, “the Board would ever be bound as matter of common-

law issue preclusion... ,” (A. 16, 930 F.2d at 322), for the Court

allowed its perception of the Board’s deferral rules (A. 14, 930

F.2d at 321) to shape its perception of preclusion law.

28 Should its Petition be granted, Petitioner will renew the

contention, not passed on by the Court of Appeals (A. 16 n.4,

(Continued on following page)

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

JEFFREY IVAN PASEK

COHEN, SHAPIRO, POLISHER,

SHIEKMAN AND COHEN

PSFS Building, 24th Floor

12 South 12th Street

Philadelphia, PA 19107

(215) 922-1300

Attorneys for Petitioner

Yellow Freight System, Inc.

OF COUNSEL:

Howarpb LEsNICK

3400 Chestnut Street

Philadelphia, PA 19104

(Continued from previous page)

930 F.2d at 322 n.4), that, in the absence of a finding that Bedell

did not assault Smidt, the Board’s decision is not supported by

substantial evidence.

APPENDIX

TABLE OF CONTENTS

Pages

Description of Documents

United States Court of Appeals for the Third

Circuit Opinion filed April 11, 1991............ A-1

National Labor Relations Board Decision and

Order dated November 21, 1989 .............. A-18

Administrative Law Judge Decision dated May

BE Gs hea WES eRe H Oe IRIE RSD Cine Ke 0k Ke A-20

Superior Court of New Jersey Order and Judg-

ment filed February 10, 1989.................. A-44

Award of Arbitrator Daniel F. Brent dated August

FO iat pa ey ee SE aS eee A-47

A-1

Filed April 11, 1991

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 90-3272

NATIONAL LABOR RELATIONS BOARD,

Petitioner

YELLOW FREIGHT SYSTEMS, INC.,

Respondent

. On Appeal from an Application for Enforcement

of an Order of the National Labor Relations Board

(Board Docket No. 22-CA-15817)

i Argued November 8, 1990

Before: SLOVITER, Chief Judge*, SCIRICA,

and SEITZ, Circuit Judges

(Opinion filed April 11, 1991)

Jeffrey Ivan Pasek

Cohen, Shapiro, Polisher, Shiekman & Cohen

Philadelphia, PA 19107

Of Counsel:

Howard Lesnick (Argued)

Philadelphia, PA 19104

- Attorneys for Respondent

* The Honorable Dolores K. Sloviter became Chief Judge on

February 1, 1991.

A-2

Jerry Hunter

General Counsel

Robert E. Allen

Associate General Counsel

Aileen A. Armstrong

Deputy Associate General Counsel

Frederick C. Havard (Argued)

National Labor Relations Board

Washington, D.C. 20570

Attorneys for Petitioner

OPINION OF THE COURT

SLOVITER, Chief Judge.

The National Labor Relations Board (NLRB or Board)

petitions this court to enforce its final decision and order

in which it found that the employer, Yellow Freight Sys-

tems, Inc., discharged employee Lonnie Bedell for engag-

ing in activities protected by the National Labor Relations

Act and therefore committed an unfair labor practice in

violation of sections 8(a)(1) and 8(a)(3) of the Act, 29

U.S.C. §§ 158(a)(1) and 158(a)(3) (1988). The employer

asserts that we should decline to enforce the Board’s

decision on the ground that the administrative law judge

was bound to a finding in an earlier arbitration proceed-

ing that Bedell assaulted a supervisor. We must therefore

decide the extent to which the Board must accord issue

preclusive effect to that arbitral finding.

Facts and Procedural History

Lonnie Bedell was hired in 1983 as a dock worker at

Yellow Freight’s Carlstadt, New Jersey facilities. His

A-3

testimony as to the relevant facts set forth below was

credited by the ALJ following a hearing. In April 1986,

Bedell observed JoAnne VeGrosa, the sales secretary, cry-

ing in the company parking lot after she had dropped her

keys. DeGrosa told Bedell that she had been sexually

harassed by branch manager Dan Hamlin and sales man-

ager Kenny Dore. Bedell reported the incident to his shop

steward the following evening and requested that the

steward discuss the allegations with Dore. Dore

approached Bedell a day later, and told him that DeGrosa

was not a union member and that the matter was none of

Bedell’s business.

The sexual harassment continued, and DeGrosa was

discharged three months later. Bedell accompanied

DeGrosa to the New Jersey Division of Civil Rights,

assisted her in filing a claim with the Equal Employment

Opportunity Commission, and signed an affidavit on her

behalf. Thereafter, Bedell posted on the union’s bulletin

board a newspaper advertisement for an upcoming tele-

vision series on workplace sexual harassment. As he did

so, Bedell commented to a supervisor that Dore and

Hamlin “shouldn’t have done that to JoAnne DeGrosa.”

Supp. App. at 61-61B.

Shortly after these events occurred Bedell’s super-

visors began to give him more arduous and dangerous

assignments, such as transporting heavier loads without

mechanical assistance and working in the hazardous area

of the dock where corrosive liquids are stored, even

though he was the most senior dock worker ai the Carl-

stadt facility. Bedell also was subjected to frequent work-

place harassment. Although he apparently complained on

several occasions to his supervisors and to the union

A-4

officials, Bedell continued to be harassed. Bedell left the

Carlstadt facility in 1987 and transferred to Yellow

Freight’s new terminal in Elizabeth, New Jersey. Dore

was then appointed as the operations manager in Eliz-

abeth. Bedell was again assigned harder and more

demeaning work than he had veen assigned before he

assisted JoAnne DeGrosa, such as cleaning the coffee

room and working without the use of the forklift truck

and drag line.

Bedell filed his own charge with the Equal Employ-

ment Opportunity Commission on January 19, 1988, in

which he asserted that he was being subjected to constant

harassment in retaliation for the assistance he rendered to

DeGrosa in opposing Dore’s and Hamlin’s sexual harass-

ment practices. On February 3, 1988, Bedell was assigned

to unload and move 40 cartons, each weighing 24 pounds.

While he was in the process of placing them into three

carts his supervisor Joseph Smidt ordered him to consoli-

date the cartons into two carts.

Bedell and Yellow Freight contest the events that

followed this order. Bedell contends that he told Smidt

that he would follow the order but added “and Iam not a

piece of shit,” in protest of the continuous harassment.

Supp. App. at 88. Yellow Freight claims that he refused to

follow the order, exclaiming, “because you're a big piece

of shit... . [aJnd you’re a scum bag, too.” App. at 63-64.

Smidt testified that Bedell came toward him waving his

hands up and down and staring with a crazed look in his

eyes. Smidt is 6 feet 2 inches tall, weighs 260 pounds, is

20 years younger than Bedell, and is a judo and karate

champion. Bedell weighs 170 pounds. Smidt testified that

he nevertheless feared bodily injury because he had

A-5

heard rumors that Bedell carried a gun and had used it to

threaten others. Smidt testified he turned and walked

quickly to Dore’s office. Bedell testified Smidt walked

away and talked to the shift operation manager who was

30 or 40 feet away, and who told Bedell to go to Dore’s

office.

Bedell was thereafter discharged for disobeying a

direct order and assaulting a supervisor.' Bedell filed a

second complaint with the Equal Employment Oppor-

tunity Commission, alleging that he was fired in retalia-

tion for filing his first EEOC complaint.

Bedell also filed a grievance based on his discharge

which was arbitrated at a two-day hearing. Bedell

retained personal counsel to represent him who also rep-

resented the union, Local 641 of the International Brother-

hood of Teamsters, Chauffers [sic], Warehousemen and

Helpers of America, AFL-CIO. Bedell was permitted to

call his own witnesses and to cross-examine Yellow

Freight’s witnesses.

The hearing was limited, without objection by Yellow

Freight, to the issue of whether there was just cause for

Bedell’s termination under the collective bargaining

' According to the arbitrator, “if the grievant’s physical

action toward his supervisor placed the supervisor in reason-

able fear of imminent hostile touching or bodily injury, then

such actions — especially when viewed in combination with the

loud and angry words spoken by the grievant — constituted an

assault on the supervisor which would satisfy both the criteria

for summary discharge expressly established by the National

Master Freight Agreement and the criteria universally applied

in the work place.” App. at 489-90.

A-6

agreement entered into between Yellow Freight and the

union. Bedell’s lawyer stated on the record that he did

not intend to raise any of the issues pertaining to Bedell’s

EEOC charges. The arbitrator found that although Bedell

did not disobey a direct order, he did assault his super-

visor, and there was therefore just cause for his discharge.

He noted in his opinion that, “[t]he grievant’s credibility

was substantially diminished by the fact that he did not

previously grieve what he characterized as unfair treat-

ment when he was ordered to push his carts and not to

use the drag line.” App. at 491. Bedell appealed the

arbitrator’s decision to the Superior Court of New Jersey,

which affirmed without opinion.

Finally, Bedell filed charges with the National Labor

Relations Board alleging that his discharge by Yellow

Freight constituted an unfair labor practice. The adminis-

trative law judge conducted a hearing after the arbitra-

tor’s decision was made. The ALJ found that Yellow

Freight committed unfair labor practices in violation of

sections 8(a)(1) and 8(a)(3) of the NLRA because Bedell

was harassed and discharged for supporting DeGrosa’s

sexual harassment claim. In so finding, the administrative

law judge concluded that much of the testimony support-

ing Yellow Freight’s allegations that Bedell committed an

assault was not credible. The ALJ refused to defer to the

arbitrator’s finding that Bedell had assaulted his super-

visor, noting, “[i]t would not be appropriate to do so as

the conflicting accounts presented to me for resolution

are necessarily enmeshed with the evidence bearing on

the EEOC matters.” Supp. App. at 12.

The Board affirmed the ALJ's rulings, findings, and

conclusions. It adopted the recommended order which

A-7

directed Yellow Freight to (1) cease and desist trom dis-

criminating against and coercing employees in the exer-

cise of their rights guaranteed by the NLRA; (2) reinstate

Bedell with back pay and full seniority and remove from

his files any reference to his unlawful discharge; (3) make

available any records necessary to calculate back pay; and

(4) post a notice to Yellow Freight’s employees of the

violation and compliance with the Board’s order in a

conspicuous place. The Board has petitioned this court to

enforce the decision and order pursuant to section 10(e)

of the NLRA, 29 U.S.C. § 160(e) (1988).

Statutory Preclusion

According to the general rule regarding issue preclu-

sion, or collateral estoppel, “[w]hen an issue of fact or

law is actually litigated and determined by a valid and

final judgment, and the determination is essential to the

judgment, the determination is conclusive in a subse-

quent action between the parties, whether on the same or

a different claim.” Restatement (Second) of Judgments

§ 27 (1982); see also Rider v. Commonwealth of Pennsylvania,

850 F.2d 982, 989 (3d Cir.), cert. denied, 488 U.S. 993 (1988).

Yellow Freight contends that either federal statutory

or federal common law requires the NLRB to accord issue

preclusive effect to the arbitrator’s finding that Bedell

assaulted his supervisor. Its statutory argument is based

on the full faith and credit statute which provides that,

“(t]he Acts of the legislature of any State. . . [and] [t]he

records and judicial proceedings of any court of any such

State .. . shall have the same full faith and credit in every

A-8

court within the United States . . . as they have by law or

usage in the courts of such State... from which they are

taken.” 28 U.S.C. § 1738 (1988) (emphasis added). Yellow

Freight argues that because New Jersey would give the

arbitrator’s finding preclusive effect, so also must the

Board.

Were we dealing merely with the arbitrator’s finding,

this case would be easier. Section 1738 does not by its

terms apply to the findings of an arbitrator, and the

Supreme Court has held that section 1738 preclusive

effect need not be given to an unreviewed arbitration

award. See McDonald v. City of West Branch, 466 U.S. 284,

287 (1984). The Court reasoned that arbitration cannot

provide an adequate substitute for a judicial proceeding

to protect federal statutory and constitutional rights. See

Kremer v. Chemical Constr. Corp., 456 U.S. 461, 477 (1982)

(arbitration decisions not subject to mandate of § 1738).

When a state court has affirmed an arbitration award,

different considerations apply because then the issue is

the preclusive effect to be given to a state court judgment.

In Jalil v. Avdel Corp., 873 F.2d 701, 704 (3d Cir. 1989), cert.

denied, 110 S. Ct. 725 (1990), we held that section 1738 did

not require that we afford preclusive weight to a state

court’s affirmance of an arbitrator’s decision that an

employee was discharged for insubordination rather than

union activity because we concluded that the state court’s

review was narrow and it did not address the Title VII

issues which were raised in the federal suit. The opinion

suggests, however, that if the issues adjudicated by the

state court were identical to those in the federal suit,

A-9

section 1738 would require preclusion,? provided that the

grievant was afforded a full and fair opportunity to liti-

gate his claim in arbitration and the state court review is

not too narrow to warrant the application of collateral

estoppel. Cf. Bottini v. Sadore Management Corp., 764 F.2d

116, 121 (2d Cir. 1985) (state court scope of review of

arbitrator’s decision too narrow to give state judgment

preclusive effect). We need not decide whether the New

Jersey Superior Court judgment was based on a similarly

restrictive review because we conclude that in any event

section 1738 does not apply to the NLRB.

The terms of the statute require only courts of the

United States to give issue preclusive effect to state court

decisions. The directive of section 1738 has been literally

applied. The same analysis used in holding that section

1738 does not require giving preclusive effect to state

administrative factfinding, see University of Tennessee v.

Elliott, 478 U.S. 788, 794 (1986), or arbitration awards, see

2 In Jalil, we distinguished Rider v. Commonwealth of

Pennsylvania, 850 F.2d at 988, where we gave preclusive effect

to a Pennsylvania Commonwealth Court judgment holding

that the hiring of female guards to monitor female prisoners

was a bona fide occupational qualification. We note that the

statement in Jalil that in Rider “we held that an earlier state

court affirmance of an arbitrator’s decision precluded a federal

discrimination action,” 873 F.2d at 705 (emphasis added), was

incorrect because in Rider the Commonwealth Court vacated

the arbitrator’s decision on the ground that it was not ration-

ally derived from the terms of the collective bargaining agree-

ment. See 850 F.2d at 986. Thus, Rider did not concern the

preclusive effect to be given an arbitrator's decision, reviewed

or unreviewed.

A-10

McDonald, 466 U.S. at 287-88, because they are not “judi-

cial proceedings” requires a conclusion that federal

administrative agencies are not bound by section 1738

because they are not “courts.”

In Elliott, the Court noted that section 1738 was

enacted before the development of administrative agen-

cies, 478 U.S. at 795, and thus limited its consideration of

the preclusive effect to be given to state administrative

decisions to the federal common law, eschewing the stat-

ute. If the phrase “judicial proceedings” is not broad

enough to encompass the decisions of administrative law

judges or the NLRB itself, then the phrase “courts” is

similarly too narrow to encompass the Board’s decision

and order.

There are sound policy reasons why the Board should

not be constrained by section 1738. Under that statute,

preclusive effect is given to a state court judgment only to

the extent the state itself would accord the judgment

preclusive effect. See, e.g., Kremer, 456 U.S. at 466; Jalil, 873

F.2d at 704. If section 1738 were applicable to the Board,

then its effectiveness in remedying unfair labor practices

would be dependent upon the states’ varying views of

claim or issue preclusion. Such a result would compro-

mise the uniformity of rights intended by the passage of

the federal labor laws. Cf. Garner v. Teamsters Union, 346

U.S. 485, 490 (1953) (discussing Congress’ intention in

enacting Labor Management Relations Act provisions to

avoid “diversities and conflicts likely to result from a

variety of local procedures and attitudes toward labor

controversies”). Moreover, we deem it significant that

Yellow Freight cites no case, nor have we found one, that

holds that notwithstanding the language of section 1738

A-11

restricting its application to courts, administrative agen-

cies are similarly bound to its command.

Yellow Freight argues that even if the Board is not

required to accord issue preclusive effect to the New

Jersey Superior Court’s summary affirmance of the arbi-

trator’s decision, this court must do so because, as a

“court,” we fall within the literal language of section

1738. We cannot accept this effort to effect indirectly what

cannot be accomplished directly. If a reviewing court

must deny enforcement of a Board order whenever its

decision relies on facts inconsistent with those earlier

found by an arbitrator and upheld by a state court, then

we would in effect be forcing the Board to accord issue

preclusive effect to the arbitrator’s factfinding. Whatever

the merits of such a legal rule, we have already con-

cluded that it cannot be supported by section 1738.

Because it would be anomalous to conclude that although

the Board is not statutorily required to defer to the arbi-

trator’s factfinding, the same statute works to deny

enforcement of its orders whenever it fails to so defer, we

decline to so hold.?

3 In light of our conclusion that section 1738 does not

constrain NLRB factfinding, we need not consider the Board’s

alternative argument that section 10(a) of the NLRA, 29 U.S.C.

§ 160(a) (1988), constitutes an implied repeal of section 1738 as

applied to NLRB factfinding.

A-12

IIT.

Common Law Preclusion

Of course, our conclusion that section 1738 is inappli-

cable here does not end our inquiry, for courts have

“frequently fashioned federal common-law rules of pre-

clusion in the absence of a governing statute.” Elliott, 478

U.S. at 794; see also McDonald, 466 U.S. at 288 (“Because

federal courts are not required by statute to give res

judicata or collateral-estoppel effect to an unappealed

arbitration award, any rule of preclusion would neces-

sarily be judicially fashioned.”). Thus, in Elliott the

Supreme Court applied common law preclusion princi-

ples to Title VII litigation, holding that “when a state

agency acting in a judicial capacity . . . resolves disputed

issues of fact properly before it which the parties have

had an adequate opportunity to litigate, .. . federal courts

must give the agency’s factfinding the same preclusive

effect to which it would be entitled in the State’s courts.”

478 U.S. at 799 (quoting United States v. Utah Constr. &

Mining Co., 384 U.S. 394, 422 (1966)).

Common law preclusion also has been applied to

collaterally estop the NLRB from finding the existence of

a collective bargaining agreement when a federal court

had earlier ruled that no binding labor agreement had

been formed. See, e.g., NLRB v. Donna-Lee Sportswear Co.,

836 F.2d 31 (1st Cir. 1987); see also NLRB v. Heyman, 541

F.2d 796 (9th Cir. 1976) (Board precluded from determin-

ing that employer’s repudiation of agreement and refusal

to negotiate constituted an unfair labor practice where a

federal court had earlier rescinded the collective bar-

gaining agreement).

A-13

Yellow Freight contends that a common law rule of

preclusion should be applied here because federal labor

policy strongly encourages the private resolution of labor

disputes. Federal courts have indeed consistently given

highly favorable status to consensual arbitration. See, e.g.,

Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S.

235, 243 (1970) (noting importance of arbitration as an

instrument of federal policy for resolving disputes

between labor and management); NLRB v. A. Duie Pyle,

Inc., 730 F2d 119, 124 (3d Cir. 1984) (law gives highly

favorable status to private, amicable resolution of labor

disputes); NLRB v. Pincus Bros., Inc. Maxwell, 620 F.2d 367,

372 (3d Cir. 1980) (acknowledging national policy in favor

of the private resolution of labor disputes through con-

sensual arbi'ration). We note, however, that Yellow

Freight’s rule of preclusion might tend to undermine this

federal preference for arbitration because if the Board

were required to defer to the arbitrator’s factual findings,

employees might decide to forgo arbitration of their

grievances in order to preserve their unfair labor practice

claims.

In any event, the policy in favor of arbitration must

be balanced against a federal policy to ensure the ability

of the NLRB to remedy unfair labor practices. The pre-

eminence of the congressional policy in favor of remedy-

ing unfair labor practices is reflected in section 10(a) of

the NLRA, which states that the Board’s power to prevent

such practices “shall not be affected by any other means

of adjustment or prevention that has been or may be

established by agreement, law, or otherwise.” 29 U.S.C.

§ 160(a) (1988). This section has been cited to emphasize

that the Board acts in the public interest to enforce public,

A-14

not private rights, and that the “parties cannot by con-

tractual agreement divest the Board’s function to operate

in the public interest.” Gulf State Mfrs. v. NLRB, 598 F.2d

~ 896, 901 (Sth Cir. 1979) (en banc).

The Board itself, recognizing the value of arbitration

under certain circumstances, has voluntarily and as a

matter of its own discretion adopted a deferral policy

under which it will defer to an arbitrator’s award pro-

vided certain conditions are met: 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 purposes and policies of the Act, and

the arbitrator has adequately considered the unfair labor

practice issue. See e.g., Olin Corp., 268 N.L.R.B. 573, 573-74

(1984); Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955); NLRB

v. Al Bryant, Inc., 711 F.2d 543, 549 (3d Cir. 1983), cert.

denied, 464 U.S. 1039 (1984).

Although we have held that it is the court’s respon-

sibility to ensure that the Board follow its own policies,

see NLRB v. Pincus Bros. Inc. Maxwell, 620 F.2d at 372, we

review the Board’s deferral decisions for abuse of discre-

tion only. Al Bryant, 711 F.2d at 550; NLRB v. General

Warehouse Corp., 643 F.2d 965, 970 (3d Cir. 1981). We have _

explicitly recognized the importance of the Board’s condi-

tion that deferral depends on the arbitrator’s consider-

ation of the statutory issue. In Al Bryant we stated, “[t]he

requirement that the statutory issues have been presented

to and decided by the arbitrator is of particular signifi-

cance to insure that the Board does not abdicate its

responsibility to protect statutory rights.” 711 F.2d at 550;

see also NLRB v. General Warehouse Corp., 643 F.2d 965 (3d

Cir. 1981) (Board not required to accord claim preclusive

A-15

effect to arbitrator’s decision that there was just cause for

employee’s discharge because arbitrator never considered

unfair labor practice issues before the Board).

Yellow Freight concedes that the arbitrator never

considered whether unfair labor practices had been com-

mitted and that, under the Board’s deferral policy, the

Board should decide whether the unfair labor practice

charges at issue have merit. Nevertheless, Yellow Freight

argues that in considering the merits the NLRB should be

required to defer to specific facts found by the arbitrator,

namely, that Bedell assaulted his supervisor. The Sixth

Circuit rejected a similar claim, holding that deference to

an arbitrator’s factfinding is not warranted in cases

- where “the arbitrator was not fully apprised of the facts

relevant to the unfair labor practice charge.” Grand Rapids

Die Casting Corp. v. NLRB, 831 F.2d 112, 116 (6th Cir.

1987). We agree with that court’s reasoning that “[iJt

makes little sense to defer to the arbitrator’s specific

factual findings where deference overall was refused

because of the inadequacy of the factual presentation to

the arbitrator.” /d.

The motivations and the credibility of the parties and

their witnesses may take on an entirely new light once

the additional facts related to the unfai: ‘abor practice

charge are introduced. In the present case, for example,

the administrative law judge had reason to question the

credibility of Yellow Freight’s witnesses’ version of the

facts in light of the evidence presented to him regarding

Bedell’s past employment relationship with his super-

visors. On the other hand, the arbitrator never heard

much of the evidence of Dore’s harassment of Bedell in

retaliation for Bedell’s assistance of DeGrosa. Moreover,

A-16

the arbitrator, who discounted Bedell’s credibility on the

ground that Bedell had not previously grieved his treat-

ment, was apparently unaware that Bedell had com-

plained about harassment in the EEOC claim that he filed

shortly before his discharge.

Because the evidence related to the unfair labor prac-

tice claim, here the history of discrimination and Bedell’s

earlier efforts to alleviate the conditions under which he

was forced to work, was not presented to the arbitrator,

the ALJ did not abuse his discretion in concluding that

the conflicting accounts of Bedell’s actions on the day he

was discharged from Yellow Freight were “necessarily

enmeshed with the evidence bearing on the EEOC mat-

ters,” Supp. App. at 12, and that deference to the arbitra-

‘tor’s factfinding was therefore not warranted.

We need not in this case decide whether the Board

would ever be bound as a matter of common law issue

preclusion to defer to an arbitrator’s factual findings in a

case where deference to an arbitrator’s award was not

required under the Board’s own deferral policy. It is

sufficient to resolve the issue before us to hold that the

Board is not bound to the earlier factual finding of an

arbitrator when the arbitrator was not presented with

evidence essential to the Board’s resolution of that same

factual issue in disposing of an unfair labor practice

charge.4

4 Because we conclude that the administrative law judge

permissibly found that Lonnie Bedell did not in fact assault his

supervisor, we need not address Yellow Freight’s contention

that in the absence of this finding the Board’s conclusion was

not supported by substantial evidence.

ers ee eee:

A-17

IV.

Conclusion

For the foregoing reasons, we will enforce in its

entirety the decision of the National Labor Relations

Board ordering Yellow Freight to reinstate Lonnie Bedell

with back pay and to cease and desist from engaging in

unfair labor practices.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

A-18

SHD

297 NLRB No. 50

D-1049

Elizabeth, NJ

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

YELLOW FREIGHT SYSTEMS, INC.

and Case 22-CA-15817

LONNIE BEDELL, an Individual

DECISION AND ORDER

On May 18, 1989, Administrative Law Judge James F.

Morton issued the attached decision. The Respondent

filed exceptions and a supporting 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 brief and has decided to

affirm the judge’s rulings, findings,’ and conclusions and

to adopt the recommended Order.

' The Respondent has excepted to some of the judge’s

credibility findings. The Board’s established policy is not to

overrule an administrative law judge’s credibility resolutions

unless the clear preponderance of all the relevant evidence

convinces us that they are incorrect. Standard Dry Wall Prod-

ucts, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We

have carefully examined the record and find no basis for

reversing the findings.

In agreeing with the judge’s credibility resolutions regard-

ing events on the day of Bedcll’s discharge, we find it unneces-

sary to rely either on the judge’s finding that there had been no

(Continued on following page)

A-19

D--1049

ORDER

The National Labor Relations Board adopts the rec-

ommended Order of the administrative law judge and

orders that the Respondent, Yellow Freight Systems, Inc.,

Elizabeth, New Jersey, its officers, agents, successors, and

assigns, shall take the action set forth in the Order.

Dated, Washington, D.C. November 21, 1989

James M. Stephens, Chairman

John E. Higgins, Jr., Member

Dennis M. Devaney, Member

NATIONAL LABOR RELATIONS

BOARD

(SEAL)

(Continued from previous page)

rumors that Bedell possessed a gun or on the judge’s specula-

tion that if Smidt really believed Bedell had a gun, Smidt

would have “swiftly disarmed” or “dismembered” Bedell.” We

note that, considering Smidt’s evasive demeanor while testify-

ing, the judge concluded that Smidt’s claim that Bedell had

behaved in a threatening manner was untrue.

We correct the following inadvertent errors of the judge.

Bedell worked for the Respondent 4 years and 3 months, not 5

years; Kenneth Dore was the operations manager at the Eliz-

abeth terminal, not the terminal manager; and the correct

spelling of the names of the following individuals is “Chuck

Gruppusso” and “Joann DeGrosa.”

A-20

JD(NY) - 14 - 89

Elizabeth, NJ

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

NEW YORK BRANCH OFFICE

YELLOW FREIGHT SYSTEMS, INC.

and Case No. 22-CA-15817

LONNIE BEDELL, An Individual

Maria E. Balzano, Esq. and

Renee |. Crain, Esq.,

Counsel for the General Counsel.

Jeffrey 1. Pasek, Esq. and Paul J.

Russoniello, Esq. (Cohen, Shapiro,

Polisher, Shiekman & Cohen), of

Philadelphia, PA, for Yellow

Freight Systems, Inc.

DECISION

Statement of the Case

JAMES FE MORTON, Administrative Law Judge:

The complaint alleges that Yellow Freight Systems, Inc.

(Respondent) violated Section 8(a)(1) and (3) of the

National Labor Relations Act, as amended (the Act) by

discharging Lonnie Bedell from its employ because he

assisted another employee in filing a charge against

Respondent with the United States Equal Employment

Opportunity Commission (EEOC) and because he filed a

charge with EEOC alleging that Respondent then retali-

ated against him, both of which are matters assertedly

covered by a collective bargaining agreement Respondent

has with a labor organization.

A-21

Respondent’s answer denies that allegation and

states also that Bedell’s alleged activity on behalf of

another employee was not protected by the Act, based on

Respondent’s contention that the other employee had

been a confidential employee. Further, Respondent

asserts that the Board should defer to the findings in an

arbitration award that upheld Bedell’s discharge.

The hearing on the complaint was heard in Newark,

New Jersey on November 28 and 29 and on December 5

and 20, 1988. Upon the entire record, including my obser-

vation of the demeanor of the witnesses, and after due

consideration of the briefs filed by the General Counsel

and Respondent, | make the following:

Findings of Fact

I. Jurisdiction and Labor Organization

The pleadings establish, and | find, that Respondent

is engaged in the interstate and intrastate transportation

of freight and that its operations meet the Board’s appli-

cable jurisdictional standard. Further, | find, also based

on the pleadings, that Local 641, International Brother-

hood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America, AFL-CIO, (Local 641) is a labor orga-

nization as defined in Section 2(5) of the Act.

II. The Alleged Unfair Labor Practice

A. Background

Bedell was discharged on February 3, 1988 from his

employment by Respondent as a dockman at its Eliz-

abeth, New Jersey terminal. General Counsel contends

A-22

that his discharge was the culmination of a series of

harassing tactics begun in 1986 when he was working at

Respondent’s Carlstadt, New Jersey terminal. General

Counsel is precluded by the limitations period of Section

10(b) of the Act from asserting that the alleged acts of

harassment constitute unfair labor practices under the

Act. To put General Counsel’s contention in perspective

and also to be able to evaluate Respondent's assertions, it

is necessary to consider first certain events that occurred

at the Carlstadt’s terminal in 1986 and other events that

occurred at Local 641 meetings.

Bedell has worked for about 30 years as a dockman in

the freight transportation industry, the last 5 for Respon-

dent. In 1986, he was working on the night shift at

Respondent’s terminal in Carlstadt. Kenneth Dore was

the branch manager there and Dan Hamlin was the sales

manager. Jo Anne DeGrosa was an office employee there.

B. Events in April 1986

Bedell testified as follows. In April 1986, he was in

the parking lot at the Carlstadt terminal just prior to the

start of his shift when he noticed that a woman was

crying and“that she had dropped her car keys while

trying to open héxcar. He asked her if he could help. She

told him that she hadsgeen subjected to sexual harass-

ment by Dore and and [sic}-Namlin. Bedell calmed her

down and told her he would talk thig shop steward. The

woman was DeGrosa.

Local 641 represents the dockmen at Carlstadt. it also

represents the office employees there.

A-23

Bedell testified that he saw the shop steward, Charles

Kaminski, the next evening and asked him to speak to

Dore about what De Grosa had told him. Bedell further

related that, on the following day, Dore told him, Bedell,

that Kaminski had spoken to him about DeGrosa and that

Dore also told him that DeGrosa “is not a union person

and that’s none of your business.” Bedell testified further

that he answered that he felt it was his business and that

Dore walked away, saying again that it was none of

Bedell’s business.

Kaminski was called as a witness by Respondent. He

testified on his direct examination on various matters but

not as to his conversation with Bedell in April 1986

pertaining to DeGrosa. Dore also testified for Respon-

dent. He answered in the negative when asked, on his

direct examination, whether he was aware of any efforts

made by Bedell to help DeGrosa prior to her discharge in

July 1986. I credit Bedell’s detailed account, which was, in

material respects, corroborated by DeGrosa.

C. Incidents Involving EEOC in 1986 and 1987 and

Alleged Harassment

In addition to the above described incidents in April,

1986, the following evidence was proffered by the Gen-

eral Counsel as to Bedell’s alleged protected activities

and Respondent’s hostility to them.

DeGrosa was discharged on July 11, 1986. Bedell took

her to the office of the New Jersey Division of Civil

Rights on several occasions thereafter, including August

29, 1986 when she filed a Charge of Discrimination

against Respondent, alleging therein sordid details of

A-24

sexual harassment purportedly committed by Dore and

Hamlin.

On November 29,. 1986, according to Bedell, he

posted on Local 641’s bulletin board at the Carlstadt

terminal, a newspaper advertisement which promoted a

special report on the subject, “Sexual Harassment on the

Job” to be shown on a television news program through-

out that week. Bedell testified that Respondent’s Opera-

tions Manager, John McNamara, was present when he

posted that advertisement. Bedell testified, without con-

tradiction, that one of Respondent’s supervisors, Chuck

Gruppiano, asked him what the posting was all about

and that he replied that Dore and Hamlin “shouldn’t

have done that to Joanne DeGrosa.”

Bedell testified that, soon after he posted the news-

paper advertisement on the subject of sexual harassment,

he was given more arduous work assignments in retalia-

tion. Thus, he testified that before December 1986, he, as

the most senior dockman at Carlstadt, had rarely been

assigned heavy loads to move and when he was assigned

to heavy loads, he had been given a fork-lift truck to

move them. In December 1986 according to Bedell, all

that changed; he had to “walk” heavy loads almost every-

day. Bedell testified that Respondent also began to assign

him regularly to work in an area in front of Dore’s office

and in “the hazardous ara [sic].” The latter is an area

where corrosive liquids are stored which on occasion

leak. Bedell’s testimony is that these onerous assignments

continued until the end of July 1987 when Dore was

removed as branch manager at Carlstadt.

A-25

Respondent called witnesses who testified in subs-

tance that Bedell was never treated differently from any

other employee, except that it kept him under close

supervision because he was not a productive worker.

Respondent’s witnesses testified that it kept no records of

his productivity or lack thereof and that it could not issue

a warning to a dockman even if his productivity was

poor. Records subpoenaed by General Counsel disclose

that Respondent has issued written warnings to an

employee for, inter alia, poor productivity.

Bedell’s account was corroborated by John

Buchmuller, a dockman who worked at Carlstadt with

Bedell. The parties stipulated that three other dockmen

there, if they were called as witnesses would testify as

Buchmuller did. I credit Bedell’s testimony as to his

receiving more arduous work assignments while under

Dore at Carlstadt for the period December 1986 to July

1987. Bedell’s account did not appear to be contrived and

it was independently corroborated; Respondent’s expla-

nations were unconvincing and the limited documentary

evidence did not support them.

Bedell uncontrovertedly related the following inci-

dent. In May, 1987, dock supervisor Gruppiano posted on

Respondent’s bulletin board at Carlstadt an excerpt from

a handbook which pertained to EEOC rules. Bedell asked

Gruppiano if he could look at the handbook, stating to

Gruppiano that there has to be something in it on the

subj. ct of sexual harrassment. Gruppiano gave him the

book. Bedell testified that the subject of sexual harass-

ment was discussed on page 43 of the handbook. He

asked Gruppiano for a copy of the handbook. Grupiano

replied that he would have to clear the request with Dore.

A-26

Two hours later, according to Bedell he repeated his

request of Gruppiano when he saw him. Gruppiano then

stated, according to Bedell, that Dore “went off the wall”

when he heard of the request, that Dore told him not to

give Bedell a copy and that Dore also told him that he

should never even have shown the handbook to Bedell.

Again, I credit Bedell’s uncontroverted testimony.

Bedell testified as follows as to an order he received

later that month from an operational supervisor at Carl-

stadt, Robert Sparks. He was ordered to finish unloading

a trailer, then one-quarter full, by lunchtime. It was then

20 minutes before lunch. When Bedell said that he could

not possibly finish before lunch, Sparks told him that he

would have to see Dore with his steward if he did not

finish by lunch. Later that day and after it had taken him

two hours to empty the trailer, Sparks told him that, if he

cannot handle the pressure, he should retire. Sparks testi-

fied and denied that he had harassed Bedell in any way, I

credit Bedell’s detailed account.

Bedell also gave the following uncontroverted testi-

mony respecting a remark made to him by dock super-

visor Mike Lensack in May or June 1987. While making a

dock check at the time the shifts were changing, Lensack

said to Bedell, “you’re going to get yours.” Bedell asked

what that meant. Lensack gave him an angry look and

kept walking. | credit Bedell’s account as to this incident.

On July 28, 1987 Dore issue a letter to Bedell warning

him for having left work early on July 18. Bedell saw

Dore and told him, in substance, that he does not take

time off from work without a good reason. Dore looked at

Bedell’s file and observed that it was true that Bedell

A-27

does not “lose work.” Dore left the Carlstadt facility on

July 30. His replacement, John McNamara, sent Bedell a

letter on July 31, rescinding the July 28 warning.

D. Bedell’s Transfer to Elizabeth

In early October 1987, Respondent decided to open a

terminal in Elizabeth, New Jersey. Its employees at the

Carlstadt terminal were notified that, if they wanted to be

eligible to transfer there, they had to sign a register on or

before November 13, 1987. Bedell waited until almost the

last moment before signing that register. According to

him, he signed it because the assistant shop steward Peter

Enrico had informed him that he was not going to sign

that register. His testimony indicates, that, notwithstand-

ing, Enrico then signed the register. Bedell was aware

then of a rumor that Dore would be the terminal manager

at Elizabeth when it opened.

Bedell, who at one time had been a shop steward,

was aware when he signed the register, that the Local 641

contract contained a provision whereby employees who

transferred had a 30 day grace period during which they

could return to their former terminal. However, Local

641’s business representative, John Bowers, informed the

Carlstadt employees two weeks later that the 30 day

return provision would not apply to the transfers to

Elizabeth.

The Elizabeth terminal opened on December 7, 1987.

Bedell reported to work there the next day. Dore was

terminal manager there.

A-28

E. Alleged Harassment of Bedell at Elizabeth

Among the first assignments Bedell received when he

reported on December 8 was an order given him by

Respondent’s shift operations manager, Peter Esposito, to

clean the coffee room. That job is the responsibility of

porters who were working there then. Respondent

offered evidence that it had decided to assign the most

senior man on each shift to clean the coffee room in order

that he might set an example for the other dockmen. That

explanation strikes me as highly suspicious.

Bedell’s testimony is that Respondent’s supervisors,

during the two month period he worked in Elizabeth

until his discharge, assigned him to put heavy loads in

carts and to walk them instead of permitting him the use

of a fork-lift truck or of the drag line. The drag line is an

[sic] cable that pulls carts along to the stations where they

are unloaded. In contrast to the treatment given him,

according to Bedell, the other dockmen who were all less

senior to him used the drag line every day. Bedell’s

testimony too is that he unlike other dockmen, was fre-

quently assigned to work directly in front of a super-

visor’s desk and that he was never assigned a helper,

except for one occasion. On that occasion, he had sought

to use a fork-lift truck to move a rug but a supervisor told

him not to use it and instead assigned a dockman to help

him carry the rug.

Respondent offered testimony that Bedell did have

use of the drag line, was given fork-lifts and helpers and ~

that it frequently assigned him to work directly in front

of a supervisor because his productivity was poor.

Bedell’s account is the more persuasive and I accept it.

}

)

;

A-29

F. Bedell’s Discharge

General Counsel contends that Respondent's harass-

ment of Bedell culminated in his discriminatory dis-

charge on February 3, 1988. Respondent asserts that

Bedell was discharged solely because he assaulted, and

thereby placed in fear of bodily harm, a dock supervisor

on that day.

On January 19, 1988 Bedell filed a charge of discrimi-

nation with the New Jersey Division of Civil Rights,

alleging therein that Respondent has been constantly

harassing him since 1986 because he “opposed” Dore in

having assisted DeGrosa’s claim that she had been sub-

jected to sexual harassment. That charge was served on

Respondent that same day. Bedell testified that he filed

that charge after Local 641 officials had told him that they

could do nothing for him until DeGrosa withdrew her

claim against Dore.

On February 3, 1988 Bedell was assigned to unload

40 cartons, each weighing 24 pounds, from a truck and to

bring them to another location on the shipping dock. He

placed 15 of these cartons in one cart, also called a

wheeler, and 11 in a second cart. He moved those carts

about 15 feet away and was in the process of unloading

the remaining cartons from the truck onto a third cart.

When he had placed about 7 of the remaining cartons into

that cart, supervisor, Joseph Smidt, came by. Smidt

ordered him to consolidate the shipment of the 40 cartons

in two carts, not three. Each cart weighs between about

160 pounds and 200 pounds and when loaded with 20

cartons at 24 pounds, each cart would weigh another 480

pounds.

A-30

Bedell testified that he was in the process of comply-

ing with Smidt’s order in that he continued to unload the

truck onto the third cart which he then would have

wheeled over to the first two; he related that he, at that

point would divide the contents of the third cart into the

first two and walk those to the shipping location. While

in the process of unloading the truck, Bedell was asked

by Smidt if he was going to comply with the order he was

given. Smidt told him he was disobeying a direct order.

Bedell responded according to his account, by stating that

he was not disobeying an order and that he (Bedell) was

not a piece of shit. Bedell testified that he made that

remark because of the way he was being harassed since

he came to the Elizabeth terminal.

Smidt’s account of this incident is that, when he

asked Bedell if he intended to comply with a direct order,

Bedell said in a loud voice, “No, Joe, and you're a big

piece of shit.”

General Counsel and Respondent called witnesses to

corroborate the respective accounts of Bedell and Smidt.

It is unnecessary to decide that credibility issue as

Respondent asserts that Bedell was discharged because of

‘what transpired after the exchange between Bedell and

Smidt. Were it necessary to resove [sic] that credibility

issue, I would credit Bedell as, for the reasons discussed

below, I find that Smidt’s testimony cannot be relied on.

Respondent asserts that, right after Bedell and Smidt

had their discussion on February 3, Bedell’s actions put

Smidt in imminent fear of bodily harm and that Bedell

thereby had committed a dischargeable offense as con-

templated by the provisions of the collective bargaining

en ee ee aes

A-31

agreement Respondent has with Local 641. General Coun-

sel contends that Bedell engaged in no such assault and

that Respondent contrived the account in order to dis-

charge Bedell because he had pressed DeGrosa’s claim of

sexual harassment and his own claim that he was also

being harassed by Respondent because he had helped

her.

Local 641’s contract, according to a stipulation

received at the hearing, provides that Respondent will

not engage in any unlawful discrimination, including that

based on one’s sex.

In support of Respondent's contention, Respondent

offered the following: |

Smidt testified as follows as to what transpired after

the verbal exchange he had with Bedell on February 3.

Bedell came toward him with a crazed look in his eyes

and with his arms moving up and down repeatedly and

in an agitated manner. Smidt became terrified. He, Smidt,

was aware of rumors that Bedell owned a gun and

thought that Bedell might have one inside the winter

clothing he had on. He, Smidt, then ran to Dore’s office.

Later in his testimony, Smidt related that, when he saw

Bedell coming towards him, he turned and walked

quickly to Dore’s office.

Bedell’s account as to what happened after the verbal

exchange is as follows. When he told Smidt that he,

Bedell, was not a piece of shit, Smidt walked away and

spoke into a “walkie-talkie.” Smidt asked Pete Esposito, -

the shift operations manager if he had heard what had

transpired. Esposito was about 30 to 40 feet away. Smidt

walked towards Esposito and talked with him. Esposito

A-32

had a puzzled look on his face. Smidt talked further with

Esposito and then turned toward Bedell to order him to

go to Dore’s office because he had disobeyed a direct

order and because he had assaulted him, Smidt.

Smidt, is 6 feet, 2 inches all, [sic] weighs 260 lbs., and

is about 20 years younger than Bedell. Bedell is 5 feet 10

inches and weighs 170 lbs. Bedell’s hair is graying and he

wears thick glasses. Smidt has the following accomplish-

ments in martia! arts — national champion in Judo, East

Coast Champion in Judo, and Long Island Champion in

Karate.

I have considerable difficulty in accepting Smidt’s

testimony that he was terrified of Bedell on February 3.

First, Smidt physically compared to Bedell, is immense. If

he really believed that Bedell had a gun, I am certain that

he would have very quickly pinned Bedell’s arms to his

sides should Bedell have made any effort to reach into or

beneath his winter clothing to retrieve a gun. Bedell

likely would have found himself swiftly disarmed and

indeed, perhaps dismembered by Smidt. Secondly, it is

highly unlikely that Smidt would have turned his back on

Bedell and walked quickly away as he testified, if he was

afraid that Bedell might shoot him. Thirdly, General

Counsel's brief lists about 50 transcript references where

Smidt answered, “I don’t know” or “I don’t remember”

or “(no response)” to questions posed to him on cross-

examination. For example, he testified that he could not

remember if he was afraid because of the way Bedell’s

arms were swinging, or because of the crazed look he had

said was in Bedell’s eyes, or because of Bedell’s physique.

It seemed to me that Smidt was masking his real feeling

behind a professed inability to recall why he was afraid.

A-33

Rather, I sensed from his responses that the very idea that

he could be afraid of Bedell annoyed him and that he

found it easier to answer that he could not recall why he

was afraid. Fourthly, shift operations manager Esposito’s

own testimony reveals that he had no fear of Bedell’s

supposedly “crazed” look or of Bedell’s using a gun.

Esposito related that he had gone directly over to Bedell

to instruct him to report to Dore’s office.

Fifthly, Smidt’s account that he was aware of a

“rumor” that Bedell carried a gun at times is unpersua-

sive. Respondent presented several witnesses in an effort

to establish that this “rumor” was widespread. That

effort, in my judgment, was not very successful. Thus,

Respondent called Robert Miller to demonstrate that, in

1987, Bedell had threatened to use a gun and had one on

his person then. Miller is a Local 641 steward at another

terminal and, in 1987, supported certain candidates for

Local 641 offices in an intra-union election then. Bedell

supported opposing candidates. Miller and Bedell gave

conflicting accounts as to an argument they had then.

Without belaboring the point, I do not credit Miller’s

testimony that Bedell, while drinking at a bar showed

Miller a gun, and when he threatened to use it, Miller

called Bedell a “faggot” and in effect dared Bedell to use

the gun. This account strikes me as improbable. | cannot

believe that Miller would have so taunted Bedell if Bedell

was drinking and threatened to use a gun. Even more

absurd is Miller’s other testimony that Bedell acts in a

“macho” manner. Bedell’s personality is entirely low key.

Respondent also called its director of security to testify

about the rumor that Bedell carried a gun. He related that

Michael Curley, Respondent’s break bulk manager at the

A-34

Elizabeth terminal, asked him in January 1988 for advice

as to Respondent’s potential liability concerning a rumor

that Bedell was alleged to be carrying a firearm and, he

advised Curley that there was nothing Respondent could

do as it was based on “speculation and hearsay.” The

director of security further testified that Curley asked

him to check further as to the New Jersey penal law, and

that the law confirmed his earlier advice. Such a cavalier

approach to a purported concern that an employee had a

gun does very little to support Smidt’s account that he

was afterwards terrified by Bedell’s actions. In short, I

find the evidence most deficient to support Respondent's

effort to demonstrate that there was a rumor that Bedell

carried a gun. There was no gun, there was no rumor.

G. Analysis

The credited evidence discloses that Bedell in 1986

intervened with Respondent on behalf of DeGrosa’s claim

of sexual harassment, that he was told by Dore that he

should mind his own business and that, when he posted

an advertisement relating to the problem of sexual

harassment on Local 641’s bulletin board later that year

and also sought to learn more of Respondent’s policy

concerning sexual harassment as contained in its hand-

book, he was subjected to considerable harassment in his

work — until Dore left Carlstadt in July 1987. The harass-

ment resumed the very first day he reported to the Eliz-

abeth terminal where Dore was terminal manager and it

continued until the day he was discharged. The reason

given by Respondent for discharging him is spurious.

ieee staat

A-35

Bedell’s support of DeGrosa’s claim which is a matter

protected by the collective bargaining agreement, his own

EEOC claim also protected by the contract and which was

filed shortly before his discharge, Respondent’s know-

ledge thereof, its relentless hostility to Bedell’s actions

and the pretextual reason given for Bedell’s discharge

make out a clear prima facie showing that Bedell was

discharged because he supported DeGrosa’s claim of sex-

ual harassment by Dore.

General Counsel has thus met the burden imposed

under Wright Line, a Division of Wright Line Co., 251 NLRB

1083, 1089 (1980); the burden thereby shifted to Respon-

dent to demonstrate that it would have taken the same

action even in the absence of union activity. Respondent

failed to meet this burden as, for the reasons set forth

above, its asserted justification was a sham. In that

regard, see K & M Electronics, Inc., 283 NLRB No. 43

(March 19, 1987) and cases cited therein. Respondent

simply relied on the testimony of Smidt and other wit-

nesses to demonstrate that Bedell had acted in a threaten-

ing manner on February 3. I have discredited that

testimony. Respondent had also sought to show that it

had discharged two employees because of similar threats

made. Suffice it to note that even that its attempt to

demonstrate that Bedell was not treated in a disparate

manner was badly flawed. Among other things, it

appears that one of those two employees had engaged in

a number of egregious acts before his employment with

Respondent terminated. In any event, I need not consider

the matter of disparate treatment as I have found that

Bedell had not, on February 3, assaulted Smidt.

A-36

Respondent raised two collateral defenses, discussed

in the next sub-sections. First, it asserts that DeGrosa was

a confidential employee not protected by the Act and

argues that Bedell’s activity in support of her claim of

sexual harassment is not protected by the Act because it

was not done in concert with an employee covered by the

Act. Secondly, Respondent asserts that the Board should

defer to the findings of fact made by the Arbitrator;

Respondent does not now assert that the Board should

defer to the award itself.

H. DeGrosa’s Job

Respondent's first witness in support of its conten-

tion that DeGrosa was a confidential employee was

Charles Kaminski, a driver at the Carlstadt terminal and

Local 641’s steward there. He testified that she was

Dore’s private secretary and that she did work for sales

manager Dave Hamlin. Local 641 represents a separate

unit of about 23 clerical employees at Carlstadt. DeGrosa

was not in that unit.

Dore testified for Respondent that, when he was

branch manager at Carlstadt, he hired DeGrosa as a confi-

dential secretary, that he told her she ws [sic] a confiden-

tial secretary, and that she did work for him and Hamlin.

He testified that she was the only one who had access to

employee personel [sic] files and that she typed all corre-

spondence of a confidential nature concerning perfor-

mance reports, evaluations, and disciplinary actions in

addition-to her duties involving sales.

ae aad Drea

Siar a hig 2 play OEMS at AD SANE

A-37

Respondent’s office manager at Carlstadt, Mary

Anne Fish, was not called by Respondent to support its

claim that DeGrosa was a confidential employee.

In rebuttal, DeGrosa testified for General Counsel

that her job title at Carlstadt was sales secretary and

dispatcher. In her EEOC chrge [sic] filed in September

1986, she asserted that she was terminated from (her)

position as Secretary Dispatcher. As to her job duties, she

testified that she spent four hours each day in the dis-

patcher’s office handling the dispatcher’s phone which

“rang all day long”, that she spent a half-hour to an hour

each day handling “shift calls” from dockmen and that

she spent the remainder of her workday as sales secretary

dealing with salesmen, typing expense checks, preparing

bills of lading, typing sales letters and accident reports

and in photostating job applications for mailing to

Respondent’s principal office. She testified that she typed

several letters that Dore gave her in longhand and that

these had to do with vending machines, yard construc-

tion work and a letter on a general matter, the subject of

which she did not recall. She did the filing for sales. She

denied that she did any filing for Dore. She testified that

the office manager of Carlstadt, Mary Anne Fish, Dore

and Local 641 stewart Kaminski were the only ones who

had keys to a filing cabinet in Dore’s office. She states

that she never attended any meetings pertaining to

union-management matters and stated that Mary Anne

Fish handled everything involved in the preparation of

“labor-law information.”

I credit DeGrosa’s detailed testimony. There is no

probative evidence that she was a confidential employee.

A-38

It is unnecessary to consider General Counsel’s conten-

tion that Bedell’s activity would still be protected even

were DeGrosa a confidential employee.

I. The Arbitration Award

Respondent placed in evidence an arbitration award

dated August 11, 1988 which denied Bedell’s grievance

that Respondent did not have “just cause under the col-

lective bargaining agreement for (his) discharge... “!

General Counsel put in evidence the opening pages of the

transcript of the arbitration hearing; Respondent placed

in evidence the balance.

Bedell’s attorney at the arbitration hearing made it

' clear at the outset that he was not there to litigate any of

the matters involved in Bedell’s EEOC charge. The issue

before me - whether Bedell was discriminated against

because he assisted DeGrosa as to her EEOC charge and

also filed an EEOC charge on his own behalf - was not

presented to the arbitrator. In these circumstances, defer-

ral is not warranted. See Olin Corporation, 268 NLRB 573

(1984).

Respondent requested that I defer to the credibility

resolutions of the arbitrator. It would not be appropriate

to do so as the conflicting accounts presented to me for

' Respondent’s post-hearing motion that | take judicial

notice of a New Jersey Court decision confirming that award is

granted, in order that the full record in that proceeding may be

considered. That motion and General Counsel's statement of

opposition are received as Administrative Law Judge Exhibit

No. 4.

A-39

‘resolution are necessarily enmeshed with the evidence

bearing on the EEOC matters. To ignore the testimony as

to Bedell’s aid to DeGrosa and other EEOC matters is to

ignore the whole case.

Conclusions of Law

1. Respondent is an employer engaged in commerce

within the meaning of Section 2(2),(6) and (7) of the Act.

2. Local 641 is a labor organization as defined in

Section 2(5) of the Act.

3. As General Counsel established a prima facie case

that Bedell was discharged for discriminatory reasons, as

Respondent has not rebutted that showing, as DeGrosa

was not a confidential employee and as deferral to the

arbitral findings is unwarranted, I conclude that Respon-

dent, in discharging Bedell on February 3, 1988, commit-

ted an unfair labor practice proscribed by him 8(a)(1) and

(3) of the Act.

Remedy

Having found that the Respondent has engaged in

certain unfair labor practices, I find that it hould [sic] be

ordered to cease and desist therefrom and to take certain

affirmative action designed to effectuate the policies of

the Act.

The Respondent having discriminatorily discharged

Bedell, it must offer him reinstatement and make him

whole for any loss of earnings and other benefits, com-

puted on a quarterly basis from the date of discharge to

date of a proper offer of reinstatement, less any net

A-40

interim earnings, as prescribed in F.W. Woolworth Co., 90

NLRB 289 (1950), plus interest as computed in New Hori-

zons for the Retarded, 283 NLRB No. 181 (May 28, 1987).

On these findings of fact and conclusions of law and on

the entire record, I issue the following recommended [sic].

ORDER

The Respondent, Yellow Freight Systems, Inc., its

officers, agents, successors and assigns, shall:

1. Cease and desist from:

(a) Discharging, refusing to reinstate, or other-

wise discriminating against any employee for. having

engaged in concerted activities, protected by the National

Labor Relations Act (Act).

(b) In any like or related manner coercing

employees in the exercise of the rights guaranteed them

by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Offer Lonnie Bedell, immediate and full

reinstatement to his former job or, if that job no longer

exists, to a substantially equivalent position, without

prejudice to his seniority or any other rights or privileges

previously enjoyed, and make him whole for any loss of

2 If no exceptions are filed as provided by Section 102.46

of the Board’s Rules and Regulations, the findings, conclu-

sions, and recommended Order shall, as provided in Section

102.48 of the Rules, be adopted by the Board and all objections

to them shall be deemed waived for all purposes.

A-41

earnings and other benefits suffered as a result of the

discrimination against him, in the manner set forth in the

remedy section of the decision.

(b) Remove from its files any reference to his

unlawful discharge and notify him in writing that this

has been done and that the discharge will not be used

against him in any way.

the Board or its agents for examination and copying, all

payroll records, social security payment records,

timecards, personnel records and reports, and all other

records necessary to analyze the amount of backpay due

under the terms of this Order.

(d) Post at its terminal in Elizabeth, New Jersey

copies of the attached notice marked “Appendix”.

Copies of the notice, on forms provided by the Regional

Director for Region 22, after being signed by the Respon-

dent’s authorized representative, shall be posted by the

Respondent immediately upon receipt and maintained

for 60 consecutive days in conspicuous places including

all places where notices to employees are customarily

posted. Reasonable steps shall be taken by the Respon-

dent to ensure that the notices are not altered, defaced, or

covered by any other material.

3 If the Order is enforced by a Judgment of a United States

Court of Appeals, the words in the notice reading “POSTED BY

ORDER OF THE NATIONAL LABOR RELATIONS BOARD”

shall read “POSTED PURSUANT TO A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS ENFORCING AN

ORDER OF THE NATIONAL LABOR RELATIONS BOARD”.

A-42

(e) Notify the Regional Director in writing

within 20 days from the date of this Order what steps the

Respondent has taken to comply.

Dated: Washington, D.C. May 18, 1989

/s/ James F. Morton

James F. Morton

Administrative Law Judge

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 the National Labor Relations Act and has

ordered us to post and abide by this notice.

WE WILL NOT discharge, refuse to reinstate, or other-

wise discriminate against any of you for engaging in

concerted activities, protected by the National Labor

: Relations Act.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce you in the exercise of the rights

guaranteed’ you by Section 7 of the Act.

WE WILL offer LONNIE BEDELL, immediate and full

reinstatement to his former job or, if that job no longer

exists, to a substantially equivalent position, without

prejudice to his seniority or any other rights or privileges

previously enjoyed and WE WILL make him whole for

any loss of earnings and other benefits resulting from his

discharge, less any net interim earnings, plus interest.

a NE Te eT eT

A-43

WE WILL remove from our files, and WE WILL notify

him that we have removed from our files any reference to

his discharge and that tive discharge will not be used

against him in any way.

YELLOW FREIGHT SYSTEMS, INC.

(Employer)

Dated By

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND eta NOT BE

DEFACED BY ANYONE.

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concern-

ing this notice or compliance with its provisions may be

directed to the Board’s office, Region 22, 970 Broad Street,

Newark, New Jersey 07102, Telephone (201) 645-2100.

A-44_

BRENNER & BRENNER, P.A.

570 Route 10, P.O. Box 14

Livingston, New Jersey 7039

(201) 533-0402

Attorneys for Defendant

MERCHANDISE DRIVERS: ~~ oe pion O

LOCAL 641 LAW DIVISION:

Plaintiffs, . UNION COUNTY

, * DOCKET NO. L-103501-88

YELLOW FREIGHT Civil Action

SYSTEMS, INC., ‘ ORDER AND JUDGMENT

A corporation FILED

of New Jersey , FEB 10 1989

Defendants.

THIS MATTER coming on to be heard on February 3,

1989 the return date of an Order to Show Cause brought

by Yauch, Peterpaul, Vitolo, attorneys for the plaintiffs

requesting the Court to set aside a certain Arbitratrator’s

[sic] Award for the reasons set forth in the Verified Com-

plaint and the matter being heard in the presence of

Brenner & Brenner, P.A., Martin J. Brenner, Esq. Appear-

ing, attorney for the defendant who by Counterclaim

seeks to confirm the Arbitrator’s Award referred to in the

pleadings and the Court having considered all papers

submitted on behalf of the parties and oral argument and

good cause being shown it is on the 10th day of February

1989

A-45

ORDERED

(1) Plaintiff's Complaint seeking to set aside the

Arbitrator’s Award is dismissed with prejudice and with-

out costs.

(2) JUDGMENT is hereby entered on defendant's

Counterclaim confirming the Arbitration Award of Daniel

F. Brent dated August 11, 1988.

/s/ Edward W. Beglin Jr.,

EDWARD W. BEGLIN JR.,

A.J.S.C.

STATE OF NEW JERSEY

COUNTY OF UNION

UNION COUNTY, SS.:

I, WALTER G. HALPIN, Clerk of the County of Union,

aforesaid, and also Deputy Clerk of the Superior Court,

of Union County, Holden therein

DO HEREBY CERTIFY, That the foregoing is a true and

correct copy of a certain ORDER AND JUDGMENT

LONNIE BEDELL & SUPERIOR COURT OF

MERCHANDISE DRIVERS NEW JERSEY

LOCAL 641 LAW DIVISION -

UNION COUNTY

= DOCKET NO. L-103501-88

YELLOW FREIGHT

SYSTEMS, INC.

a Corp. of New Jersey

as the same is taken from and compared with the original

on file as of FEBRUARY 10, 1989 in my office.

A-46

IN TESTIMONY WHEREOF, I have

hereunto set my hand and

affixed the seal of said Court and

County, at Elizabeth, N.J.

this 23rd day of Feb. 1989

SEAL

County Clerk and Deputy Clerk of

the Superior Court

A-47

NEW JERSEY STATE BOARD OF MEDIATION

NEWARK, NEW JERSEY

In the Matter of the Arbitration Between

YELLOW FREIGHT SYSTEMS

and

MERCHANDISE DRIVERS LOCAL 1641 [sic]

Case No. 87-738

AWARD OF ARBITRATOR

The undersigned Arbitrator, having being [sic] desig-

nated in accordance with the arbitration agreement

entered into by the above-named parties, and having

been duly sworn and having duly heard the proofs and

allegations of the parties, AWARDS as follows:

Based on the evidence submitted, there was just

cause under the collective bargaining agreement for the

discharge of Lonnie Bedell. The record does not reflect

that the grievant was subjected to disparate treatment or

that the grievant’s representatives were denied access to

files and other documentary material relevant to the pro-

cessing of the instant grievance. The instant grievance is

hereby denied.

August 11,1988

/s/ Daniel F. Brent

Daniel F. Brent, Arbitrator

A-48

State of New Jersey

County of Mercer

On this 11th day of August, 1988 before me person-

ally came and appeared Daniel F. Brent, to me known and

known to me to be the individual described in the forego-

ing instrument, and he acknowledged to me that he exe-

cuted the same.

/s/ Illegible

An Attorney of Law of the

State of New Jersey

NEW JERSEY STATE BOARD OF MEDIATION

NEWARK, NEW JERSEY

In the Matter of the Arbitration Between

YELLOW FREIGHT SYSTEMS

and

MERCHANDISE DRIVERS LOCAL 641

Case No. 87-738

Hearings are held in the above-entitled matter on

June 17 and June 28, 1988, at the offices of the New Jersey

State Board of Mediation in Newark, New Jersey, before

Daniel F. Brent, duly designated as Arbitrator. Both par-

ties attended these hearings, were represented by coun-

sel, and were afforded full and equal opportunity to offer

testimony under oath, to cross-examine witnesses, and to

present evidence and arguments. A verbatim transcript

was made of the proceedings, and the matter was

declared closed on July 14, 1988.

A-49

APPEARANCES

FOR THE COMPANY

Martin J. Brenner, Esq. of Brenner and Brenner, Esqs.

Edward Nolan, Director of Labor

FOR THE UNION

Thomas P. Vitolo, Esq. of Yauch, Peterpaul, Clark and

Vitolo, Esqs.

Jackie Barnes, Business Agent

George Bell, Shop Steward

ISSUE SUBMITTED

Was there just cause under the collective bargaining

agreement for the discharge of Lonnie Bedell? If not,

what shall be the remedy?

NATURE OF THE CASE

The grievant is employed as a dock worker at the

Company’s Break Bulk Terminal in Elizabeth, New Jersey.

He was discharged for assaulting a supervisor in viola-

tion of Article 47, Section 2 of the collective bargaining

agreement between the parties. The Union grieved the

discharge, denying that any assault had occurred. The

grievant argued that the enumeration of offenses justi-

fying summary discharge, while including assault on an

employer or representative during working hours, was

silent with regard to a verbal assault, the misconduct

underlying the imposition of discipline in the instant

case. The Union also contended that, even if the grievant

corse nlite: ne tata A, intial erp

ee eR

A-50

had disobeyed an order to load boxes on two-hand trucks

rather than three as charged, that such conduct does not

justify discharge.

The Company argued that the grievant’s reputation

for violence, bullying, and carrying a gun was known to

his supervisor. According to the Company, when the

grievant approached in a manner which the supervisor

interpreted as menacing, the supervisor was placed in

reasonable fear of imminent bodily injury and retreated.

This sequence of events was characterized by the Com-

pany as sufficient to satisfy the definition of assault

embodied in the collective bargaining agreement.

The parties were unable to resolve their dispute

within the grievance procedure, and the matter was

brought to arbitration.

DISCUSSION

Although the versions offered by each party of the

events precipitating the discharge of the grievant differ

greatly from each other, the evidence in the record estab-

lishes clearly and convincingly that the grievant used

harsh language to his supervisor after having been

directed to stack cartons on hand trucks in a specific

manner. It is well recognized that shop talk in an indus-

trial setting permits the use of rougher language then

[sic] might be acceptable in commercial establishments or

in public places. Certain expletives are commonly used as

punctuation or for emphasis without the aggressive or

insulting impact such words would have in another con-

text. However, the language used by the grievant toward

A-51

his supervisor exceeded such permissible bounds because

of the tone and tenor of his invective.

Although cursing at a Supervisor in the manner and

circumstances of the instant grievance constitutes harass-

ment or insubordination, such cursing alone would not

constitute cause to discharge an employee. Moreover,

such insubordination is not among the criteria justifying

summary discharge explicitly established under the

National Master Freight Agreement. However, if the

grievant’s physical action toward his supervisor placed

the supervisor in reasonable fear of imminent hostile

touching or bodily injury, then such actions - especially

when viewed in combination with the loud and angry

words spoken by the grievant — constituted an assault on

the supervisor which would satisfy both the criteria for

summary discharge expressly established by the National

Master Freight Agreement and the criteria universally

applied in the work place.

The credible testimony established that, after cursing

at his supervisor the grievant made menacing movements

towards the supervisor with raised and moving arms.

The supervisor described in a straightforward, credible

manner the fiendish look in the grievant’s eyes, from

which the supervisor concluded that the grievant was out

of control. Whether an actual battery would have

occurred is speculative because another employee inter-

vened. However, the hasty retreat of the Supervisor, who

is physically large and highly skilled in competitive mar-

tial arts, further corroborates the supervisor’s version of

the events.

op tients el ital ata erty Sf na ater

na o> re Pome

Saiehadeanear. ccuanienniinesntam ease semaine

reesei tare inipare ayer areola biggie oy

NOR ates sre hh Aaeee | die

Ni Mgt rp cen ae none nt ne een te gy

a on

A-52

The ambience of the interaction and the grievant's

seething anger gave particular meaning to his aggressive

advance toward the supervisor. Although the supervisor

clearly could have subdued the grievant had the incident

deteriorated into a hand-to-hand scuffle, the Supervisor’s

perception of the grievant’s reputation, justified or not,

combined with the supervisor’s potentially lethal martial

arts skills, justified his retreat to seek assistance from

higher management.

The affirmative defenses offered by the grievant,

while plausible, were insufficient to overcome the more

persuasive evidence offered by the Company. The griev-

ant’s credibility was substantially diminished by the fact

that he did not previously grieve what he characterized

as unfair treatment when he was ordered to push his

carts and not to use the drag line. If such a requirement

was without valid basis, it would constitute harassment_

which could have been grieved. In addition, the grievant

did not contradict the Company’s version earlier in the

grievance procedure on two occasions when it would be

reasonable to expect him to protest vigorously. Had he

~_ been consistent in the versions he offered throughout, his

credibility at the arbitration hearing may have been

greater.

In summary, verbal abuse alone might not be suffi-

cient to sustain a discharge, but the grievant’s loud angry

cursing at a supervisor, in combination with his aggres-

sive approach toward his supervisor, constituted an

assault. Although insubordination may not justify sum-

mary discharge, an assault on a supervisor will. The

collective bargaining agreement is clear and unam-

biguous with regard to an assault on management, and

A-53

the Arbitrator is without authority to add or subtract

from, amend, or alter the expressed language of the nego-

tiated agreement.

Notwithstanding the fact that the grievant did not

disobey a direct order, based on all of the facts and

circumstances established by the evidence, there was just

cause for the discharge of Lonnie Bedell. The instant

grievance is hereby denied.

There was an allegation that the Union’s request to

see pertinent documents necessary to process the griev-

ance was thwarted and that the grievant was subjected to

disparate treatment. The Company has submitted ample

proof that it has summarily discharged other employees

for similar acts in the past. The record does not reflect

that the grievant was subjected to disparate treatment or

that the grievant’s representatives were denied access to

files and other documentary material relevant to the pro-

cessing of the instant grievance.

August 11, 1988

/s/ Daniel F. Brent

Daniel F. Brent, Arbitrator

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.