Andersen Sand And Gravel Co.

National Labor Relations Board - Board DecisionsDec 23, 1985

277 N.L.R.B. 1204 (N.L.R.B. 1985)

1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Andersen Prestress Division Andersen Sand and Gravel Company and Jeff Tolfree . Case 7-CA- 17391 23 December 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 14 September 1982 Administrative Law Judge Elbert D. Gadsden issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief. On 23 February 1984 the Board issued an order remanding the proceeding to the judge for consideration and preparation of a sup- plemental decision in light of its decision in Olin Corp., 268 NLRB 573 (1984). On 5 November 1984 Administrative Law Judge Elbert D. Gadsden issued the attached supplemental decision. Thereaf- ter, the Respondent filed exceptions and a support- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision, the sup- plemental decision, and the record in light of all the exceptions and briefs and has decided to affirm the judge's rulings, findings,, and conclusions only to the extent consistent with this Supplemental De- cision and Order. The judge found that the instant case is not sub- ject to deferral to the arbitration award under Olin Corp., supra, because the arbitrator was not pre- 5ented with the facts or law relevant to resolving the unfair labor practice, issue. The judge further found that the arbitration award is clearly repug- nant to the purposes and policies of the Act. The Respondent excepts to the judge's failure to defer to the arbitration award which upheld the `discharge of _ employees Jeff Tolfree and Jerry 'Vickers for engaging in unauthorized walkouts. In support of its exceptions the Respondent submits that the judge's- failure to defer to the arbitration award was an error of law and that the General Counsel did not meet her burden of, proof that de- ferral is not warranted in this case. For the reasons set forth below, we find merit in the Respondent's contentions. In Olin Corp. the Board reaffirmed its commit- ment to the standards set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), wherein it was held that the Board would defer to an arbitration award where the proceedings appear to have been fair and regular, all parties have agreed to be bound, and the decision of the arbitrator is not clearly re- pugnant to the purposes and policies of the Act. In addition, the Board clarified its position with re- spect to the Raytheon Co.' requirement that the ar- bitrator must- have considered the unfair labor practice issue. Under the revised standard, an arbi- trator has adequately considered the unfair labor practice issue if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. Moreover, where a respondent shows that an arbi- tration concerning the matter before the Board has already occurred, the burden is now on the Gener- al Counsel to demonstrate that there are deficien- cies in the arbitral process requiring the Board to ignore the determination of the arbitrator and sub- ject the case to de novo review. The judge found that deferral is inappropriate because 'the arbitration panel2 was not presented with the facts relevant to resolving the unfair labor practice issue, the arbitration decision does not in- dicate whether, the panel considered or resolved the unfair, labor practice issue, and the decision is clearly repugnant to the Act. In support of this po- sition the judge relied on the absence of any ration- ale in the arbitration award to indicate that the panel considered the unfair labor practice and the failure of the parties, to raise the issue at the hear- ings. We find, contrary to the judge, that the arbitra- tion award satisfies the requirements of Olin and that the General Counsel failed to satisfy her burden of proof. First, it is clear that contractual and statutory' issues are factually parallel. Indeed, as admitted by the General Counsel, the question of whether an employee may be discharged for violating a no-strike clause is one which must be decided on a determination of the meaning and in- terpretation of the collective-bargaining agreement. Thus, the statutory question of whether the right to strike for less than 24 hours is protected under a 24-hour clause, or has been clearly and unequivo- cally waived under the no-strike provision of the contract, is a question of contract interpretation. Because the contractual and statutory issues are co- extensive, the Board expressly recognized in Na- tional Tea Co., 198 NLRB 614 (1972), that cases concerning interpretation of 24-hour clauses were "particularly appropriate for deferral to arbitration proceedings and for application of Spielberg princi- ples." 1 140 NLRB 883 (1963). 2 The grievance filed by Tolfree and Vickers was heard by the West- ern Michigan Industrial Board, an arbitration panel composed of an equal number of employer and union representatives 277 NLRB No. 127 ANDERSEN SAND & GRAVEL, CO. 1205 Second, it is equally apparent that the arbitration panel was presented generally with the facts rele- vant to resolving the unfair labor practice.3 In this respect, the General Counsel has not shown that the panel was lacking any evidence relevant to the determination of the nature of the obligations im- posed by the no-strike clause in the collective-bar- gaining agreement and to the determination of the nexus between that clause and Vickers' and Tol- free's conduct. Although the judge premised his decision in part on a finding that the arbitration panel did not receive or consider the law relating to the unfair labor practice, we believe that the judge misinterprets the requirements of Olin. Under Olin the arbitrator need only be "generally present- ed" with the facts relevant to resolving the statuto- ry issue. In the instant case, it is undisputed that Vickers and Tolfree were discharged for engaging in a walkout. The arbitration award denied the grievance and specifically upheld the discharge pursuant to the provisions in the collective-bargain- ing agreement relating to unauthorized walkouts. In the absence of any evidence to the contrary, it is reasonable to conclude that resolution by the panel of the contractual issue required the same evidence relevant to resolving the unfair labor practice issue. Therefore, because the evidence before the arbitra- tion panel was essentially the same evidence neces- sary for a determination of the merits of the unfair labor practice charge, we are satisfied that this re- quirement has been met.' Finally, the General Counsel argues that the ar- bitration award is clearly repugnant to the purposes and policies of the Act. Both the General Counsel and the judge have mistaken the Board's role in this matter. Because the General Counsel and the judge would have decided the contractual issues in this case differently than the arbitration panel, they argue that deferral is inappropriate, As we have re- peatedly stated since our decision in Olin, the 3 No party contends that the parties had not agreed to be bound by arbitration or that the proceedings were not fair and regular. 4 In Member Dennis' view, this case also raises an issue under Sec. 502 of the Act because the judge found that Vickers and Tolfree walked out to protest unsafe working conditions and therefore their conduct was not rendered unprotected by the contractual no-strike clause, Nevertheless, Member Dennis finds that the Olin deferral standards are satisfied here with respect to the Sec. 502 issue. A contract clause provides that employees will not, under any circum. stances, be required or assigned to engage in any activity involving dan- gerous working conditions At the arbitration hearing, the Union cited this "dangerous work" clause and argued that the no-strike provisions were inapplicable because the employees' walkout was over "outrageous and death-inviting" working conditions. In determining that the employ- ees' walkout breached the no-strike clause, the arbitration panel implicitly rejected the Union's contention that the walkout was caused by abnor- mally dangerous working conditions and therefore beyond the scope of the no-strike clause. Accordingly, Member Dennis finds that the contrac- tual issue and the Sec 502 issue are factually parallel and that the panel was presented generally with the facts relevant to resolving the Sec 502 issue Board's standard of review does not contemplate that the Board will substitute its judgment for that of the arbitrator in resolving contractual issues.5 Rather, we will inquire only into whether the arbi- trator adequately considered the unfair labor prac- tice issues , which, in this case, we have concluded was satisfactorily done.6 Accordingly, we shall defer to the grievance ar- bitration award and dismiss the complaint in its en- tirety.7 ORDER The complaint is dismissed. S Martin Redi-Mix, Inc„ 274 NLRB 559 (1985), Altoona Hospital, 270 NLRB 1179 (1984); Badger Meter, Inc„ 272 NLRB 824 (1984). B By adopting a broadly based deferral policy, as enunciated in Olin, the Board endorses the national labor policy favoring arbitration and achigves one of the primary objectives of the Act-to encourage collec- tive bargaining Deferral recognizes that the parties have accepted the possibility that an arbitrator might decide a particular set of facts differ- ently than would the Board. This possibility, however, is one which the parties have voluntarily assumed through collective bargaining ' In view of our decision to defer to the arbitration award, we find it unnecessary to rule on the merits of the unfair labor practice allegations. Joseph A. Barker, Esq., for the General Counsel. Leopold P. Borrello, Esq., of Saginaw , Michigan , for the Respondent. DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge. Upon unfair labor practice charges filled on February 8, 1980, by Jeff Tolfree and Jerry Vickers, individuals (the Charging Parties), and a charge filed in Case 7-CA- 19339 on May 22, 1981, by Teamsters Local Union No. 486 (the Union), a complaint was issued by the Regional Director for Region 7, on behalf of the General Counsel, on June 1, 1981, which was consolidated pursuant to Section 102.33 of the Board Rules and Regulations with the charge subsequently filed in Case 7-CA-19339 on July 10, 1981. In its answer filed on July 27, 1981, the Respondent denies that it has engaged in any unfair labor practices as alleged in the consolidated complaint. The hearing in the above matter was held before me in Burton, Michigan, on June 17, 1982. Briefs have been re- ceived from the General Counsel and counsel for the Re- spondent, respectively, which have been carefully con- sidered. On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT' 1. JURISDICTION Andersen Prestress Division, Andersen Sand and Gravel Company (the Respondent) is, and has been at all times material herein, until in or about July 1980, main- tained redi-mix and prestress divisions located at 6010 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Melbourne Road, in the city of Milwaukee, Michigan, where it was engaged in the manufacture, nonretail sale, and distribution of concrete beams, columns, hollow core floors, and redi-mix concrete. Although Respondent Sand and Gravel Company ceased operations at its Milwaukee, Michigan location about July 1980, it has nevertheless continued to be en- gaged in the retail and nonretail sale of building supplies at its Saginaw, Michigan location. During the year December 31, 1980, a representative period, the Respondent, in the course and conduct of its business operations, purchased and caused to be trans- ported and delivered to its Michigan facilities goods and materials valued in excess of $50,000 which were trans- ported and delivered to its facilities in Michigan directly from points located outside the State of Michigan. The Respondent also manufactured, sold, and distributed from its Michigan facility products valued in excess of $50,000, which were shipped from its facility directly to points located outside the State of Michigan. The complaint alleges, the Respondent admits, and I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent admits, and I find that Local 486, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica (the Union) is, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts On the joint motion of Respondent and Local 486 that Case 7-CA-19339 be severed from Case 7-CA-17391, pending receipt by the administrative law judge within 60 to 90 days from the date of June 17 , 1982, withdrawal and notification from the parties that there has been compliance with the terms of the non -Board settlement entered into by the parties of this date, Case 7-CA- 19339 was accordingly severed from Case 7-CA-17391. The complaint alleges and the answer admits that at all times material herein the following named persons occu- pied the positions set opposite their respective names, and have been and are now supervisors of the Respond- ent, within the meaning of Section 2(11) of the Act, and agents within the meaning of Section 2(13) of the Act: Frank N. Andersen , president ; and Richard Todd, Pres- tress division manager. At all times material herein the Respondent and the Union were parties to a collective -bargaining agreement covering the employees herein involved.I B. The Concerted Activities of Respondent's Employees and Respondents Response Thereto A composite of the undisputed,' essentially corrobo- rated, and credited testimony established that welder Jerry Vickers and cage tier Jeff Tolfree entered the employ of Respondent in October 1979. On December 3, 1979, Foreman Basil Wilson directed welder Vickers to perform an are welding job outside in an area where there were puddles of water and while it was raining rather intensely. The welding equipment did not have leads long enough for him to perform the job in the little cabin that was constructed there, and he would have had to bring the welder right out in the rain with the nonin- sulated ground and lead wires. Vickers refused to per- form the assignment because he was aware of an employ- ee who had been electrocuted or experienced an electric shock a few weeks earlier (November 15 or 16, 1979), and he was not going to be the next in line. Wilson said, "[W]ell, if you don't weld, you will probably get, fired." However, Vickers was assigned to another job for the day. On Friday, December ' 7, it was raining intensely, mixed with snow. Supervisor Wilson again ordered Vickers to weld in the rain. Vickers advised Wilson that he was not going to weld because it was not safe. Wilson said, "I want you outside working or else." He asked Wilson, "Else what?" and Wilson said, "I will show you," and turned around and grabbed his timecard and punched him out. At that time Tolfree and Matthews joined him and they discussed picketing the Respondent. Thereafter, Manager Todd came out and told him it was safe for him to weld in the rain, and he asked Todd how many years he had been welding. Todd shrugged his shoulders and walked--away. Vickers was then trans- ferred-to a tying _job in the yard with about 15 or 20 other employees, including Tolfree and Paul Mathews. They were wearing raincoats and rain trousers but they were not wearing company-furnished headgear. While Vickers worked in the yard, he learned that an inspector from MIOSHA (Michigan Occupational Safety and Health Administration) was on the premises. The inspec- tor was with or near Steward Morgan and President An- dersen. Vickers and Tolfree approached the inspector and tried to point out different unsafe conditions about the forklifts not having breaks, -the big crack in the wall where they worked, and such things as Vickers' work- site. The inspector told them he was there for one reason and one reason only, and turned around and walked away. They followed the inspector inside and tried to point out the water on the floor and the cracks in the roof when Andersen pointed at Tolfree and Vickers and said, "I don't want you to pay any attention to them " Thereafter, the inspector did not pay any attention to them and Vickers, Tolfree, and Mathews went out to the truck and mounted picket signs on the truck which was right beside the entrance gate. 1 The facts set forth above are undisputed and are not in conflict in the record ' 2 Neither fellow employee Paul Mathews, Manager Richard Todd, nor Supervisor Basil Wilson appeared and testified herein, and no explanation was given for their nonappearance ANDERSEN SAND & GRAVEL CO. With respect to the employee who had been victim- ized by an electrical accident, Vickers testified without dispute that he had learned from a foreman Rudy, whose last name he could not recall, that the victim was a guy who had helped Vickers weld on several occasions, and that it happened while the victim was helping another welder, Bradley, with an aluminum ruler while working in water, and the arc must have struck the ruler. That employee had not returned to work as of December 13. Prior to December 7, 1979, company policy had been to either permit employees to work inside or to go home under such weather conditions; and either Manager Todd or Yard Supervisor Wilson would give such a di- rective. However, on this occasion (December 7), Tot- free, Vickers, and Paul Mathews asked Manager Todd about headgear since they were working in the rain. Todd told them that such gear was on order. They then asked him could they work inside and he told them the shop was too full with other workers Thereupon, Tol- free, Vickers, and Mathews informed Manager Todd they were going home and he told them if they touched their timecards, they would be fired. Tolfree told Man- ager 'Todd on behalf of himself, Vickers, and Mathews that he would have to fire them. Tolfree then punched out his timecard and thereafter met Vickers and Math- ews who accompanied him to Union Steward Morgan out in the yard They informed Morgan what had hap- pened and asked him were they required to work in the rain without proper rain gear Morgan told them he did not know but he would call Union Representative Ha- valda and let them know later He advised Tolfree to punch back in until he had contacted the Union. Morgan returned 15 minutes later and told them they did not have to work in the rain without proper rain gear. Vick- ers and Mathews asked Morgan about putting up picket signs and the latter informed them that he could not advise them to do so, but if they did he would honor their signs. Tolfree went to punch out his timecard but discovered it was not in the rack Meanwhile, because it was payday, Vickers and Mathews went to pick up their pay- checks but they did not punch out Because Tolfree had been punched out, he headed toward the gate and met Supervisor Wilson, who told him not to go out the gate with Vickers and Mathews because they were crazy Tolfree told Supervisor Wilson he was not joining in the strike because he was cold and was going home. Vickers and Mathews were outside the gate with picket signs by Vickers' truck. Tolfree nevertheless went outside and sat in the truck with Vickers and Mathews. Although there was some minimal dispute about the specific contents of the picket signs, both Tolfree and Vickers testified that the signs bore the language, "Picket-Unsafe Working Conditions-Unfair." Respondent did not categorically dispute this, but if it did, I was persuaded by Tolfree and Vickers' version and therefore credit their account. As Tolfree, Vickers, and Mathews sat outside in the truck before the noon lunch hour, they talked about the unstable walls between which they had to work, their trucks having no brakes, electrical welding equipment without insulated rubber on the leads, the electrical prob- lems in the plant, as well as cranes without brakes or a 1207 warning system. They also talked about safety helmets for their heads during rainy and fair weather, as well as safety glasses to protect their eyes from flying concrete. After Tolfree, Vickers, and Mathews had been outside with their picket signs about an hour, or an hour and a half, the employees, came out for the noon lunch period, and as they came out the gate to go to their cars to eat lunch, they observed the picket signs and honored them by not returning to work. At approximately 1:30 p.m on December 7, Union Business Agent Havalda came to the plant in response to a call from Respondent He asked Tolfree and Vickers what was the problem and they told him about the unsafe working conditions which led them to picket. Thereupon Vickers, Tolfree, and Mathews accompanied Agent Havalda to a meeting with Plant President Ander- sen, Manager Todd, and Supervisor Wilson. Halvada told Andersen the Company had to provide proper rain gear and Andersen said hardhats were on order and would be furnished to the employees. After further dis- cussion, the Company agreed Vickers did not have to work in the rain or water but could work inside or go home At the close of the meeting it was agreed other safety conditions discussed in the meeting would be re- solved. Andersen told Vickers and Tolfree to go home and return to work on the next working day, Monday. The plant was virtually closed. There had been no dis- cussion of disciplinary action for the picketing activity. Halvada, Vickers, and Tolfree testified that they left the meeting with the understanding that the entire problem had been resolved. Vickers and Tolfree returned to work on Monday, December 10, and worked without incident until December 12. On December 12, 3:30 p.m., Manager Dick Todd brought a letter (G.C. Exh. 3) to Tolfree and Vickers, the substance both which read as follows: On December 7th, 1979 you stood in front of our entrance gate with signs, at your Milwaukee Plant and prevented trucks and others from entering our plant. The signs originally read "on strike," then were changed to read "unsafe working conditions " You have violated the following of the Union contract between Andersen and Teamsters Union #486 and caused the Andersen PreStress -consider- able loss and damage by work stoppage in the plant. You have violated the following provisions of the contract: (1) Article 8, Section 3, page 6. It is further agreed that all cases of any unauthorized strike, slow-down, walk-out or any authorized cessation of work that the Union shall not be liable for damage resulting from such unauthorized acts of its members. While the Union shall undertake every reasonable means to induce such employees to return to their jobs during any such period of authorized stoppage of work mentioned above, it is specifically understood and agreed that the Company during the first twenty four (24) hours of such unauthorized work stoppage shall have the sole and complete right of reasonable discipline short of 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge . Such Union member shall not be enti- tled to or have any recourses to any other provi- sions of this agreement. (2) Article 11, Section 2, page 8-Section 2. Any individual employee or group of employees, who willfully violate or disregard the arbitration and grievance procedure set forth in Article 8 of this Agreement, may be summarily discharged by the Employer without liability on the part of the Em- ployer or the Union. The letter continued , "[y]ou are therefore suspended without pay during the period from December 17, 1979, to January 2, 1980 . It was signed by Richard W. Todd, division manager. Tolfree and Vickers then asked Manager Todd why Mathews had not received a suspension letter. Todd re- plied that the Company was trying to recover lost money due to the protest, which would have been their holiday pay. Tolfree told Todd the Company would not get away with it, and Todd said it did . Thereupon, Tol- free and Vickers showed the suspension letters to Stew- ard Morgan , who said if he were in their shoes, he would put up picket signs again for unfair labor prac- tices. Later that day (December 12) Morgan told them to file a grievance. The record shows that a letter dated December 12, 1979, from counsel for Respondent advised Union Repre- sentative Havalda as follows: The two men who started the wildcat picketing were Mr. Jerry Vickers and Mr. Jeff Tolfree. They actively picketed the plant gate and encouraged other members of Local 486 to leave work , causing a virtual total cessation of work. The company is appreciative to the employees who continued to try to work and who complied with the contract. It is clear that both Mr. Vickers and Mr. Tolfree violated the following provisions of the contract. Rule 7, page 3, "flagrant disobeying of orders of supervisors " when they wrongfully refused to work after being ordered to work. Article 11, Section 2 , page 8, "willful disregard of the arbitration and grievance procedure." Article 8, Section 3, page 7, "causing unauthor- ized work stoppage ." You will note that violation of Rule 7 and Article 11, Section 2 can result in a discharge of the employees. On December 13, 1979, Vickers and Tolfree met at the plant about 6 a.m. during which time they reviewed por- tions of the contract cited in their letter of suspension from the Respondent . Their purpose of meeting was to again picket the plant at the entrance gates. Their signs stated , "unfair labor practices ." When the employees re- ported to work between 7:30 and 8 a.m., they observed the picket signs of Vickers and Tolfree who were later joined by Mathews . Just about all the 90 employees em- ployed by the Respondent honored the picket signs and refused to enter the gate, with the exception of about 10 employees . Union Steward Morgan followed the 10 em- ployees into the gate and advised them they could not cross the picket line and they turned around and came back through the gate. About 10:30 a.m., Union Representative Havalda, along with attorney for Respondent Borrello, arrived at the plant and Vickers and Tolfree accompanied them to the office of Plant President Andersen. Present with An- dersen were Manager Dick Todd and Union Steward Morgan . The discussion involved the unauthorized cessa- tion of work operations , the safety issues involving Vick- ers being ordered to work in the rain or inside in the water, and the fact that the employees were not fur- nished headgear . Manager Todd brought in seven of eight headgear which were in need of some repair and cleaning. At the opening of the meeting , Attorney Bor- rello pointed at Vickers and Tolfree and said , "You two are fired," and their suspension and discharge were a subject of discussion . The Respondent read the clause of the contract provisions dealing with the unauthorized strikes and the refusal to comply with orders of a fore- man. After the meeting , Vickers and Tolfree went to the union hall with Representative Havalda and filed a griev- ance with respect to their discharge. Union Representative Carl Havalda testified that either or both Vickers and Tolfree filed a grievance with his office on December 12, 1979, protesting the suspension they received on that date . He further testified that Tol- free and Vickers jointly filed a grievance on December 13, 1979, with respect to their discharges , during which time both grievance , suspension , and discharges were consolidated in one grievance dated December 13, 1979 (G.C. Exh. 31). The grievance filed by Tolfree and Vickers on Decem- ber 12 and 13 was heard by the Western Michigan Indus- trial Board on December 18, 1979. The hearing lasted about 15 to 20 minutes , and Vickers and Tolfree were asked if they had anything they wanted to say. The hear- ing was not recorded and transcribed and no findings of fact or written disposition were established to have been made. The Industrial Board ruled against Vickers and Tolfree and the Union requested a rehearing which was heard on March 24, 1980, based on the safety report from MIOSHA submitted to the Industrial Board. The Board's disposition is reflected in Respondent 's Exhibit 2 as follows: 79-109(a), (b)-Local 486 v. ANDERSEN PRE-STRESS , Re: Jerry Vickers Re: Jeffrey Tolfree Dispute: Discharge Decision : Upon the facts presented and by majority vote of the Board; it appearing that these matters involve the same issues of fact and contractual lan- guage; and by agreement of all parties , they were heard on a joint record . Upon the facts presented and by majority vote of the Board; the discharge is upheld, the grievance denied pursuant to the provi- sions in the contract relating to unauthorized walk- outs. The Union (Havalda) did not authorize the picketing or striking on December 7 or 13 nor did Vickers or Tol- ANDERSEN SAND & GRAVEL CO. 1209 free inform the Union that they were going to picket on December 7 or 13. Union Representative Havalda undisputedly testified that there had been several work stoppages at the Re- spondent's plant over the years since 1972, but the work- ers always went back to work within 24 hours. There- fore, no employees had ever been disciplined or dis- charged for striking or causing a work stoppage He fur- ther testified that the Industrial Board (see R. Exhs 2 and 3) did not issue any oral decisions and no transcrip- tion was made of the December 18 or the March 25, 1980 hearing. He stated that in his understanding of the contract the discharges were unwarranted because the employees returned to work in less than 24 hours. Although Havalda appeared and spoke on behalf of Tolfree and Vickers at the December 18 hearing, counsel for the Respondent, Borrello, did not appear at that hearing. Borrello testified that the suspensions of Decem- ber 11 were issued to Vickers and Tolfree for instigating the picketing activity on December 7. He testified that there was no rain or snow on December 13 nor inclem- ent weather. Borrello and President Andersen attended the request for rehearing held on March 25. Although the Industrial Board does not allow attorneys to make presentations, it made an exception in his case because Andersen was suf- fering from laryngitis. Borrello testified that he did advise the Company to cite the above-cited sections in support of the Respondent's suspensions, but did not advise the Respondent with respect to the discharges of Vickers or Mathews. Borrello further testified that the worker allegedly electrocuted was merely shocked and that a workman's compensation investigative report established that the workman was not standing in water, although the floors were wet.3 Analysis and Conclusions In analyzing and evaluating the evidence of record, it is particularly observed that the only witnesses to testify on a limited basis on behalf of Respondent herein, were its president, Frank N. Andersen, and counsel for Re- spondent, Leopold P. Borrello Neither Foreman Basil Wilson nor Division Manager Richard Todd appeared or testified herein, and no explanation was offered for their nonappearance. Consequently, most of the testimony of record is essentially uncontroverted. It is well established by the evidence that on both dates, December 3 and 7, 1979, welder Jerry Vickers re- fused to perform a welding assignment in the rain and/or in puddles of water, which provided the probable cir- cumstances for his electrocution, as a fellow employees had been victimized only a few weeks earlier; and that S Although Respondent promised to permit the counsel for the Gener- al Counsel to inspect such workman's compensation investigative report of the incident in which a worker was a victim of an electrical accident and submit such report as an exhibit herein, as of the date of this decision I have not received such report Under these circumstances, Borrello's testimony about the existence and contents of such a document is self- serving and unsupported Consequently, I discredit his testimony and it is not considered in disposing of the issues herein Otis Elevator Co., 255 NLRB 235 (1981). Vickers, along with cage tier Jeff Tolfree and Paul Mathews, all refused to work in the rain without proper headgear on December 7. I therefore conclude and find that employees Vickers, Tolfree, and Mathews were en- gaged in protected concerted activity for their mutual aid and protection on December 7. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962), and Brown & Root, Inc., 246 NLRB 33 (1979), enfd. 634 F 2d 816 (5th Cir. 1981). Morrison-Knudsen Co., 173 N]LRB 56 and cases cited at 59 fn. 11 (1968), enfd. 418 F.2d 203 (9th Cir. 1969). In view of the risk of danger of electrocution, Vickers was ordered to resume work in the rain without proper rain (head) gear. Concerning the safety of other working conditions of which they complained to management on December 7, I find that the length of time generally nec- essary to process a grievance under the current griev- ance procedure justified the immediate protest picketing action taken by Vickers, Tolfree, and Mathews. Redwing Carriers, 130 NLRB 1208 (1961), enfd. 325 F.2d -1011 (D.C. Cir. 1963), and Gateway Coal v. United Mine Work- ers, 414 U.S. 368 (1974). Moreover, whether or not the Charging Party's complaints about safety ultimately proved valid is of no consequence since, as I find, their complaints were not frivolous. Interboro Contractors, 157 NLRB 1295 (1966). Since Supervisor Basil Wilson pulled the timecards of Vickers and Tolfree on December 7 because Vickers re- fused to weld in the rain, and employees Vickers, Tol- free, and Mathews refused to work in the rain without proper rain gear, the employees had a reasonable basis for believing they were discharged by Respondent. This is especially true since Supervisor Wilson had fore- warned them they would probably be discharged if they did not work in the rain. Ridgeway Trucking Co., 243 NLRB 1048 (1979), enfd. 622 F.2d 1222 (5th Cir. 1980). Nevertheless, when Vickers, Tolfree, and Mathews pick- eted the plant on December 7 and their fellow employ- ees refused to return to work after the lunch period, Re- spondent agreed with the union agent (Havalda) that Vickers did not have to weld in the rain or puddles of water; that neither Vickers, Tolfree, nor Mathews had to work in the rain or unsafe places; and that Respondent would furnish employees with proper weather gear (hardhats) and safety equipment. Vickers, Tolfree, and Mathews returned to work on the next working day, Monday, December 10, as directed by Respondent. They also worked Tuesday, December 11, and Wednesday, December 12. However, on Wednesday, December 12, Vickers and Tolfree each received a letter from the Respondent sus- pending them from work from December 17, 1979, until January 2, 1980, for their picketing activity on December 7, 1979. After talking with Union Steward Morgan, Vickers and Tolfree proceeded to protest their suspen- sions and the continued unsafe working conditions by picketing the plant on the next morning, December 13. They were joined a little later in the day by Matthews. When the other employees refused to cross the picket line and enter the plant for work, Respondent met with Vickers, Tolfree, and the Union's business agent Havalda 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at 10.30 a m. At the beginning of the meeting, Vickers and Tolfree were informed by Respondent that they were discharged for resuming the picketing. Further dis- cussion about their suspensions, discharge, and the safety matters about which they complained did not result in a rescission of Respondent's disciplinary suspensions. The Respondent defends its disciplinary suspension and dis- charge of the Charging Parties pursuant to provisions of the contract, which provided, in part, as follows: Rule 7, page 3, "flagrant disobeying of orders of supervisors" when they wrongfully refused to work after being ordered to work. Article II, Section 2, page 8, "willful disregard of the arbitration and grievance procedure " Article VIII, Section 3, page 7, "causing unau- thorized work stoppage." The suspension notices also indicated that a violation of rule 7, article II, section 2, could result in the dis- charge of the employee. However, their notice went on to further advise that violations of article VIII, section 3, gives the employer the "sole and complete right of rea- sonable discipline short of discharge." A reading of a more complete portion of the above- cited provision provides as follows: [I]t is specifically understood and agreed that the company during the first twenty-four (24) hours of such unauthorized work stoppage shall have the sole and complete right of reasonable discipline short of dis- charge. The contract does not explain what is meant by "first twenty-four (24) hours of such unauthorized work stop- page," that is, whether 24 hours means a 24-hour day or 3 times 8 hours which equals 24 working hours. In the absence of such specificity, it would appear that the liter- al interpretation of the above language means three 8- hour working days, rather than a 24-hour day. More- over, since the language of the entire paragraph under article VIII, section 3, makes it clear that the object of this time provision is to enable the Union to try to per- suade the striking or picketing employees to return to work within the 24-hour period, it is only reasonable to conclude that the Union would, in all probability, need more than a 24-hour day within which to accomplish that objective Consequently, the only logical meaning to be attributed to such language is three 8-hour working days. In this regard, the record shows that the picketing activities of the Charging Parties on December 7, with- out authorization, caused a cessation of work at the plant from the noon lunch hour until the remainder of the workday, which totaled about 4 hours Vickers and Tolfree worked on Monday, December 10, Tuesday, December 11, and Wednesday, December 12. In protest of their suspension, they commenced pick- eting the plant on December 13 at the starting worktime (8 a.m.) causing an unauthorized cessation of work from that time until 2-1/2 to 3 hours later, when they were discharged by the Respondent between 10:30 and 11 a.m. There was possibly no work in the plant for the remain- der of the workday In such case, there was a cessation of work for a period of the full 8 hours Additionally, based on a reading of the language of the sections of the Master Agreement between the Respond- ent and the Union, cited by the Respondent in support of its suspension and discharge of the Charging Parties, I conclude and find that the language of the provisions is sufficiently clear that the 24-hour clause of the contract did not constitute a waiver of the employees' right to strike. Food Fast Stores, 202 NLRB 247, 353 (1973), ap- propriately cited by the General Counsel. It is also clear that there was no unequivocal intent to waive the right to strike, since the language lacks sufficient specificity and there is an absence of any extrinsic evidence demon- strating a more restricted interpretation. Operating Engi- neers Local Union 18, 238 NLRB 652 (1978); Gray Hobart Corp., 210 NLRB 742, 744 (1974), enfd. 511 F.2d 284, 288 (7th Cir. 1975), cert. denied 423 U.S. 925 (1975). An Employer's power to discipline its employees under the collective-bargaining agreement is, in any event, subordinate to its employees' statutory rights pro- tected under Section 7 of the Act which the employees here did not waive. In fact it was doubtful under the cir- cumstances (picketing against being ordered to work in the rain without proper rain gear and under the hazard- ous condition of a possible electrocution) that the em- ployees or the union could have waived Section 502 of the Act. See NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322 (1974), rehearing denied 416 U.S. 952 (1974). Although absent the well-established reasons for which the Charging Parties were picketing Respondent's plant on December 7, Respondent would have had a right under the Master Agreement to suspend them for bring- ing about an unauthorized cessation or work, short of 24 hours' duration. However, since the Charging Parties (Vickers and Tolfree) were engaged in a picketing pro- test of unsafe working conditions (working in the rain without proper headgear and under circumstances sub- ject to being electrocuted), they were engaged in con- certed activities protected under the Act Additionally, in Washington Aluminum Co., supra, em- ployees walked out of a workshop, in contravention of a rule requiring them to obtain permission to leave, be- cause they considered the shop too cold for work. In holding the employer's discharge of the employees un- lawful, Justice Black stated for the Court: "Indeed, con- certed activities by employees for the purpose of trying to protect themselves from working conditions as un- comfortable as the testimony and the Board findings showed them to be in this case, are unquestionably ac- tivities to correct conditions which modern labor man- agement legislation treats as too bad to have to be toler- ated in a humane and civilized society like ours." Even economic detriment to the employer does not justify its failure to comply with requirements of the Act. Washington Aluminum Co, supra. Consequently, I conclude and find that Respondent's notices of suspen- sions to the Charging Parties not only had a coercive and restraining effect on the exercise of employees' Sec- tion 7 rights, but were in fact discriminatory and in vio- lation of Section 8(a)(1) and (3) of the Act. ANDERSEN SAND & GRAVEL CO With respect to Respondent's discharge of Vickers and Tolfree on December 13 for i esuming their picketing ac- tivities on that date. the evidence clearly established that their picketing activities concluded when they attended a 10:30 a in. meeting with Respondent. Both Tolfree and Vickers were discharged by Respondent during that meeting. Consequently, their picketing activity caused an unauthorized cessation of work for 2-1/2 hours (from starting time, 8 to 10:30 a.m ), at the least, or for 8 hours, from starting time until closing time if the other employ- ees went home), at the most. In neither case did the pick- eting activities cause an unauthorized cessation of work for 24 hours' duration. This is so even if both periods of cessation are added and considered together If such ces- sation of work for 24 hours had in fact occurred, Re- spondent might have had a right under the contract to discharge them, provided they were not protesting their safety complaints Since Respondent discharged the Charging Parties for causing an unauthorized cessation of work for less than the 24-hour duration, the purpose for which the 24-hour period was provided (to allow the Union sufficient opportunity to try to persuade the strik- ing or picketing employees to return to work) was not allowed to run its course by the precipitous discharge of the Charging Parties short of the 24-hour duration Con- sequently, Respondent's discharge of Jerry Vickers and Jeff Tolfree was clearly in violation of the contract, and was discriminatory and in violation of Section 8(a)(1) and (3) of the Act. Wagoner Transportation Co., 177 NLRB 452 (1969), enfd 424 IF 2d 628 (6th Cir. 1970). Respondent's contention that Charging Parties were discharged for disobeying orders of a supervisor is not supported by the evidence of record There is no evi- dence that any orders were given to the Charging Par- ties on December 7 or 13, or at any other time material herein, which they refused to comply with, except their refusal to work in the rain and/or puddles of water while welding, and/or without proper rain gear. Howev- er, as established and found, such refusal by the Charg- ing Parties fell within the pale of protected activity under the Act. Counsel for Respondent further argues that the pro- ceeding in the instant case should be deferred to the arbi- tration decisions (December 18, 1979, and March 25, 1980) of the joint panel of the Western Michigan Indus- trial Board. The General Counsel concedes, however, and I agree, that the question of the discharges of the (:barging Parties for violating a no-strike clause of the contract was properly submitted to the Industrial Board for an interpretation and determination of the meaning of the language in the collective-bargaining agreement be- tween the Union and the Respondent. Mastro Plastics Corp. v. NLRB, 350 US 270, 283-284 (1956) There is no question that the no-strike clause of a contract be- tween the Union and the Respondent herein was submit- ted to the Industrial Board for disposition The question raised by this argument is whether the Industrial Board, in its disposition of the issues of contract interpretation, also made determinations which satisfied the require- ments of Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Suburban Motor Freight, 247 NLRB 146 (1980), as fol- lows: 1211 1. The proceedings be fair and regular. 2. All parties agree to be bound by the determinations. 3. The decision not be repugnant to the purpose and policies of the Act, and as further extended by the Board in Raytheon Co, 140 NLRB 883 (1963), and Monsanto Chemical Co., 130 NLRB 1097 (1961). 4. The issues involved in the unfair labor practice case before the Board must have been presented to and con- sidered by the arbitrator. In the instant proceeding, it was we J established by the evidence that the hearing before the Industrial Board was not recorded and transcribed and no findings of fact or written disposition of the facts were made Perhaps more importantly, the evidence does not show, but in fact strongly infers, that the issues involved in the unfair labor practice charges herein (whether Vickers and Tol- free were involved in protected concerted activity on December 7 and 13, 1979, and, if so, were their dis- charges motivated by such activity) were not submitted to nor considered by the Industrial Board on December 18, 1979, nor on March 25, 1980. Counsel for Respond- ent who testified herein did not offer any evidence to the contrary, notwithstanding. In the absence of such evidence satisfying the enumer- ated requirements of Spielberg, supra, and Suburban Motor Freight, supra, I conclude and find on the forego- ing credited evidence of record, that a decision on the issues raised herein need not be deferred to arbitration under the contract I further conclude and find that Re- spondent's suspension of Jeff Tolfree and Jerry Vickers on December 12, 1979, for engaging in protected con- certed picketing against unsafe work conditions on De- cember 7 and 13, and its discharge of them in violation of the contract on December 13, were discriminatorily motivated and in violation of Section 8(a)(1) and (3) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in close connection with its oper- ations as described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent interfered with, restrained, and coerced its employees in the exercise of their Section 7 protected rights by discriminatorily sus- pending them from its employment because they engaged in protected concerted activities by refusing to work under dangerous and unsafe working conditions, and be- cause Respondent discharged them for doing so, in viola- tion of explicit provisions of its contract with the Union, 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the recommended Order will provide that Respondent cease and desist from engaging in such conduct, and that it make the discharged employees whole for any loss of earnings within the meaning of and in accord with the Board's decision in F W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231' NLRB 651 (1977),5 except as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that Respondent cease and desist from or in any like or relat- ed manner interfering with, restraining, or coercing em- ployees in the exercise of their rights guaranteed by Sec- tion 7 of the Act NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941) On the basis of the above findings of fact, and on the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Andersen Pre-Stress Division, Andersen Sand and Gravel Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 486, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is and has been at all times material a labor organization within the meaning of Section 2(5) of the Act. 3 By discriminatorily issuing a notice of suspension or in fact suspending employees for engaging in protected concerted picketing, Respondent violated Section 8(a)(1) and (3) of the Act. 4. By discharging employees for engaging in protected concerted activities in violation of its contract with the Union, Respondent discriminated against its employees in violation of Section 8(a)(1) and (3) of the Act. [Recommended Order omitted from publication.] 5 See generally Isis Plumbing Co., 138 NLRB 716 (1962) Joseph A. Barker, Esq., for the General Counsel Leopold P. Borrello, Esq., of Saginaw, Michigan, for the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge. On February 23, 1984, the Board remanded the September 14, 1983 decision to me for consideration and preparation of a supplemental decision, in light of any impact the Board's January 19, 1984 decision in Olin Corp., 268 NLRB 573 (1984), may have on my decision. Following issuance and service of such supplemental decision on the parties, the provisions of Section 102 46 of the Board's Rules and Regulations shall be applicable In preparation for complying with the Board's Remand Order, I issued and had served on the parties a Notice to Show Cause, if any, on or before July 23, 1984, why the record in the instant proceeding is suffi- cient, or why the record should be reopened for the in- troduction of additional evidence The notice further ad- vised that if the record evidence is deemed sufficient by either party or if either party failed to respond to the show cause order, it would be deemed by me that such party or parties considered the record sufficiently docu- mented for the issuance of a supplemental decision by me and, in either brief on or before August 13, 1984, with respect to any impact the Olin decision may have on the decision in the instant case Only the General Counsel submitted a brief which has been carefully considered. In further compliance with the Board 's Remand Order herein, only the appropriateness for deferral to the arbi- trator's award , measured against the standards set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp, supra, is now considered by me in the instant pro- ceeding. Facts in the Instant Proceeding On December 7, 1979, Jeff Tolfree, Jerry Vickers, and Paul Mathews were assigned to work in the rain without proper rain and headgear. When they refused to perform the assignment and announced they were going home be- cause of lack of proper rain gear and fear of being elec- trocuted, as a fellow employee had been a few weeks earlier, Supervisor Basil Wilson told them they would be fired if they touched their timecards and did not perform the assignment. Tolfree responded, then "you'll have to fire us." Vickers and Mathews went outside the gate and displayed picket signs which read "Picket-Unsafe Working Conditions." They were later joined by Tol- free. When the working employees came out of the gate for lunch, they observed the picket signs and would not return to work. The Respondent called Union Represent- ative Havalda who met with President Andersen and the parties agreed the picketing employees did not have to work in the rain. The Company also agreed to resolve the subject of the safety complaints and the picketing employees were told to report to work on the next day. On Monday, December 10, Vickers and Tolfree re- turned to work and worked December 11 and 12. How- ever, about 3:30 p in. on December 12, Manager Todd gave Tolfree and Vickers a letter, the substance of which read as follows: On December 7th, 1979 you stood in front of our entrance gate with signs, at the Milwaukee Plant and prevented trucks and others from entering our plant. The signs originally read "on strike," then were changed to read "unsafe working conditions " You have violated the following of the Union Contract between Andersen and Teamsters Union #486 and caused Andersen Prestress considerable loss and damage by work stoppage in the plant. You have violated the following provisions of the contract: (1) Article VIII, Section 3, page 6. It is further agreed that all cases of any unauthorized strike, slow-down, walk-out or any unauthorized cessa- tion of work that the Union shall not be liable for damage resulting from such unauthorized acts of its members. While the Union shall undertake every reasonable means to induce such employees to return to their jobs during any such period of ANDERSEN SAND & GRAVEL CO. 1213 unauthorized stoppage of work mentioned above, it is specifically understood and agreed that the Company during the first twenty-four (24) hours of such unauthorized work stoppage shall have the sole and complete right of reasonable discipline short of discharge. Such Union member shall not be enti. tled to or have any recourse to any other provi• sions of this agreement. (2) Article II, Section 2, page 8. Any individ- ual employee or group of employees, who willful- ly violate or disregard the arbitration and grievance procedure set forth in Article 8 of this Agreement, may be summarily discharged by the Employer without liability on the part of the Employer or the Union. The letter continued , "You are therefore suspended without pay from December 17, 1979 to January 2, 1980." It was signed by Richard W. Todd, division man- ager. On that afternoon (December 12) Tolfree and Vickers filed a grievance with the Union protesting their suspen- sion. In a letter dated December 12, 1979, Respondent's legal counsel advised the Union that Tolfree and Vickers initiated the wildcat picket which encouraged other union employees to leave work, causing a virtual cessa- tion of work. The letter further advised as follows: It is clear that both Mr. Vickers and Mr. Tolfree violated the following provisions of the contract. Rule 7, page 3, "flagrant disobeying of orders of supervisors" when they wrongfully refused to work after being ordered to work. Article II, Section 2, page 8, "willful disregard of the arbitration and grievance procedure." Article VIII, Section 3, page 7, "causing unau- thorized work stoppage." You will note that viola- tion of Rule 7 and Article II, Section 2 can result in a discharge of the employee. At 6 o'clock on the morning of December 13, Vickers and Tolfree met at the plant's gate with signs labeled, "Unfair Labor Practices" and proceeded to picket Re- spondent. When the work force reported to work at 7:30 and 8 a.m. and observed the picket signs, they refused to enter the plant. Mathews later joined Vickers and Tol- free in their picketing activity. The picketing by Tolfree and Vickers on December 7 was undertaken in protest of their complaints about unsafe working conditions. Their picketing on December 13 was undertaken in protest of their complaints about unsafe working conditons and their suspension for picketing on December 7. The De- cember 7 picketing was found to have constituted pro- tected concerted activity under the Act. About 10:30 a.m. on December 13, Respondent's man- ager Todd and Respondent's attorney Borrello met with Union Representative Havalda, Tolfree, and Vickers. At-. torney Borrello immediately advised Tolfree and Vickers that they were fired for engaging in unauthorized picket- ing in violation of the contract. During the meeting the parties discussed the cessation of work, the complaints about work safety, safety gear, and the suspension of Tolfree and Vickers for engaging in unauthorized picket- ing on both occasions, in violation of the previously cited sections of the collective-bargaining agreement. After the meeting, Tolfree and Vickers went to the union hall and filed a grievance on their discharge and their prior grievance was consolidated with their dis- charge grievance dated December 13. Analysis and Conclusions In Olin Corp., 268 NLRB 573, 576 (1984), the collec- tive-bargaining agreement between the parties contained a provision which, in part, provided, that: [N]either the Local Union nor the International Union, nor any officer or representattive [sic] of either, will cause or permit its members to cause any strike, slowdown or stoppage (total or partial) of work or any interference, directly, with the full operation of the plant (Emphasis added.] On December 17, 1980, Olin suspended two pipefitters for refusing to perform a work assignment which they considered was more appropriately millwright work. Consequently, a "sick out" (employees leaving work with medical excuses) ensued involving 43 employees, in- cluding Union President Spatorico. Pursuant to the above contract provision, Olin discharged Spatorico, as a union officer for threatening, participating in, and failing to prevent the "sick out." Spatorico's discharge was grieved to arbitration and the arbitrator found that Spa- torico "at least partially caused or participated" in the "sick out" without trying to stop it or before it occurred, and that such conduct by a union officer was in violation of the above-cited contract provision for which he was properly discharged. When the unfair labor practice charge was presented for hearing, the administrative law judge declined to defer to the arbitrator's award because he found the arbitrator did not seriously consider the unfair labor practice issue and because he did not refer to the statutory right and waiver question in his decision. However, the judge agreed that Spatorico's conduct vio- lated the contract, and that he was properly discharged. The Board agreed with the judge's conclusion, but it did so without considering the merits because it concluded it would defer to the arbitrator's award where it is consist- ent with the standards set forth in Spielberg, supra. There, the Board held that it would defer where: 1. The proceedings appear to have been fair and regu- lar. 2. All parties have agreed to be bound by the arbitra- tor's award. 3. The decision of the arbitrator is not clearly repug- nant to the purposes and policies of the Act. In amplifying these standards in Olin Corp., the Board held that the appropriateness of deferral should be con- sidered before considering the merits of the arbitrator's award. More specifically, the Board said it would defer to an arbitrator's award if: (1) An arbitrator has adequately considered the unfair labor practice. (2) The contractual issue is factually paralleled to the unfair labor practice issue. 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) The arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. Kansas City Star Co., 236 NLRB 866 (1978); Atlantic Steel Co., 245 NLRB 814 (1979), International Harvester Co., 138 NLRB 923, 929 (1962). In applying these standards for a deferral determina- tion, the Board further stated that the following factors should be taken into consideration: (4) Any differences between the contractual and statu- tory standards of review should be weighed in determin- ing whether an award is "repugnant" to the Act. (5) Such determination need not be totally consistent with Board precedent. International Harvester Co., supra; Ramsey Y. NLRB, 327 F.2d 784 (7th Cir. 1964). (6) The arbitrator's award is palpably wrong, i.e., unless the arbitrator's decision is not susceptible to an in- terpretation consistent with the Act. (7) The parties seeking to have the Board reject defer- ral and consider the merits must show that the above standards for deferral have not been met. Pursuant to the grievance arbitration provisions of the collective-bargaining agreement in the instant case, both grievances were heard by the Michigan Industrial Board on December 18, 1979. Present for the 'Respondent were President Andersen and Manager Todd. Tolfree and Vickers appeared and were represented by Union Repre- sentative Havalda, who recited the events which led to the picketing as found in the administrative law judge's decision. Havalda apprised the Industrial Board of Re- spondent's failure to correct the conditions which were the subject of the safety complaints of the picketing em- ployees before their discharge. Having been informed of the picketing and the reasons for the picketing by Vickers and Tolfree, neither the In- dustrial Board nor the parties according to the record ever addressed or considered Section 7 of the National Labor Relations Act, and how that section has been con- strued and applied by the Board and the courts with re- spect to the concerted nature of the picketing activity of Tolfree and Vickers, in conjunction with Respondent's application of article VIII, section 3, and article II of the collective-bargaining agreement. Nor does the record show that the parties or the Board ever addressed or considered whether the nature of the protected picketing constituted a grievance which required immediate relief, for which the grievance-arbi- tration procedure, as written, does not provide an ade- quate remedy. This is particularly significant since Vick- ers and Tolfree verbally made known their safety com- plaints to their supervisor (Wilson), who did not rescind the work assignment or correct the alleged unsafe work conditions; as well as the fact that pursuing the grievance procedure further would have entailed considerable time (days, possibly weeks) without any assurance that their complaints would have been resolved in the end The evidence unequivocally established, and the judge found, that Vickers and Tolfree resorted to their picket- ing activity on December 7 because Respondent ordered them to perform work in the rain without safety equip- ment and weather gear The work also posed a risk of their being electrocuted, and that their picketing under such circumstances constituted concerted activity for their mutual aid and protection and was, therefore, activ- ity protected by Section 7 of the Act. NLRB v. Washing- ton Aluminum Co., 370 U S. 9 (1962); Brown & Root, Inc., 246 NLRB 33 (1979), enfd. 634 F 2d 816 (5th Cir. 1981); Morrison-Knudsen Co, 173 NLRB 56 and cases cited at 59 fn. 11 (1968), enfd. 418 F.2d 203 (9th Cit. 1969). The judge further found that because the work Vick- ers was ordered to perform was believed by Vickers and Tolfree to involve a risk of danger (electrocution, as well as ill health and/or personal injury), the length of time necessary to process a grievance under the grievance procedure (days or weeks, depending on the steps to be exhausted in the effort) justified the immediate and pro- tected protest picketing action taken by Vickers, Tolfree, and Mathews. Redwing Carriers, 130 NLRB 1208 (1961), enfd. 325 F.2d 1011; Gateway Coal v. United Mine Work- ers, 414 U.S. 368 (1974). All of the above-cited cases in- volved an official construction and application of the lan- guage of Section 7 and Section 8(a)(1) of the Act by the Board and the courts. After the dispute appeared to have been resolved in the meeting between Respondent and the Union on De- cember 7, Vickers and Tolfree reported to work on Monday, December 10, as they were advised by the Re- spondent. They worked on December 10, 11, and a part of the day on December 12, until they were suspended by Respondent for engaging in the picketing activity on December 1.1 It is significant to note, as the evidence shows, that Vickers and Tolfree picketed the Respondent on Decem- ber 13 for suspending them and because the unsafe work conditions about which they complained and picketed on December 7 had not been corrected. The safety com- plaints of the Charging Parties were discussed in the De- cember 13 discharge meeting between Respondent and the Union. At that time, Respondent brought in seven or eight defective and unclean headgear. However, Re- spondent apparently ignored the safety complaints and the grievance discussion on safety when it announced that Vickers and Tolfree were discharged for causing an unauthorized cessation of work on December 7 and for failing to utilize the grievance procedure to resolve the dispute about the safety conditions and their suspensions. In its defense, Respondent appears to be arguing that its reasons for discharging the Charging Parties on De- cember 13 were for causing an unauthorized work stop- page on December 7 and for their willful disregard of the grievance-arbitration procedure of the contract be- cause any disagreement with Respondent's actions should have been grieved by them under the grievance proce- dure The evidence and the judge's findings are clear, how- ever, that Vickers and Tolfree resumed their picketing on December 13 because of their suspension and their continued complaints about uncorrected, unsafe work conditions. As late as the hearing before the Industrial Board in March 1980, the parties submitted to the Michi- i It should be noted that at this puncture Respondent's suspension of Vickers and Tolfree was clearly stated by Respondent to have been based on the unquestionable protected concerted picketing by Vickers and Tolfree on December 7 ANDERSEN SAND & GRAVEL CO. gan Occupational Safety and Health Administration (MIOSHA) the report on the safety investigation of the Respondent's plant. Moreover, the administrative law judge found that Respondent's suspension and discharge of Vickers and Tolfree were motivated by their com- plaints and picketing about unsafe working conditions, as well as for their suspension for picketing about those conditions, in violation of Section 8(a)(1) and (3) of the Act. Notwithstanding, even if Tolfree and Vickers had en- gaged in the December 13 picketing solely in protest of their unlawful December 13 discharge, I would have great difficulty attempting, to separate the protest of their unlawful suspension from their picketing on December 13, in protest of their discharge for protesting the unlaw- ful suspension. The foregoing conclusion is particularly true when it is considered in conjunction with how Re- spondent, and presumably the Industrial Board, errone- ously construed and unlawfully applied article VI][I, sec- tion 3 of the contract (causing unauthorized work stop- page for the first 24 hours), without receiving and con- sidering the unfair labor practice law (Sec. 7 and Sec. 8(a)(1) of the Act and cases construing and applying these sections). Under these circumstances the law was very much a part of a factual determination in order to dispose of the contractual and statutory issues It is not arguable that the Industrial Board, by virtue of the contract provision, has jurisdiction to interpret ar- ticle VIII, section 3, and the entire collective-bargaining agreement between the parties. The parties agreed to be bound by the arbitration decision of the Industrial Board. However, although the contractual issue presented is whether the picketing conduct of Vickers and Tolfree violated specific language in the contract (arts. VIII and II), the statutory issue in which Vickers and Tolfree en- gaged is protected under the statute (the Act). A deter- mination of one does not automatically result in the reso- lution of the other. Consequently the contractual issue herein is not parallel to the unfair labor practice (statuto- ry) issue, even though they may be factually parallel. Badger Meter, 272 NLRB 824 (1984). Thus in keeping with the other standards for deferral to arbitration enunciated by the Board in Olin Corp., supra, the record shows, and I find the following: 1. Since the Industrial Board (arbitrator) was not pre- sented with the substance or a copy of Section 7 and Section 8(a)(1) of the Act, nor with Board and/or court decisions construing and applying these sections of the Act, the arbitrator was not presented with the facts (the law) relevant to resolving the unfair labor practice (the validity of employer suspending employees for engaging in protected concerted picketing activity). 2. The Industrial Board (arbitrator) did not consider the unfair labor practice (whether the picketing was statutorily protected and, if so, was Respondent's suspen- sions and discharges of the picketers motivated by the picketing because it did not receive nor consider the law defining the unfair labor practice (Section 7 and Section 8(a)(1) of the Act), and cases construing or applying that law. 3. The contractual standards of review differ from the statutory standards of review in that the former only re- 1215 quire determining whether the picketing conduct is in violation of language in the contract, while the latter re- quire a determination whether the picketing conduct was concerted and for the mutual aid and protection of em- ployees and, therefore, protected by Section 7 of the Act. Washington Aluminum Co., supra 4. Not having considered the validity of the lawful and protected December 7 concerted picketing, the decision of the Industrial Board is clearly repugnant to the pur- poses and policies of the Act. Spielberg Co., and Olin Corp., supra. Additionally, as pointed out in the judge's decision, a reading of the pertinent portion of article VIII, section 3 of the contract between the parties provided as follows: [I]t is specifically understood and agreed that the Company during the first twenty-four (24) hours of such unauthorized work stoppage shall have the sole and complete right of reasonable discipline short of dis- charge. The contract does not explain what is meant by the "first twenty-four (24) hours of such unauthorized work stoppage," that is, whether 24 hours means a 24-hour day, or three times 8 hours which equals 3 working days. In the absence of such specificity, it would appear that the literal interpretation of the above language means three 8-hour working days, rather than a 24-hour day. Moreover, since the language of the entire paragraph under article VIII, section 3, makes it clear that the object of such time provision is to enable the Union to try to persuade the striking or picketing employees to return to work within the 24-hour period, it is only rea- sonable to conclude that the Union would, in all proba- bility, need more than a 24-hour day within which to ac- complish that objective. Consequently, the only logical meaning to be attributed to such language is three 8-hour working days. In this regard, the record shows that the picketing activities of the Charging Parties on December 7 caused an unauthorized cessation of work at the plant from the noon lunch hour until the remainder of the workday, which totaled about 4 hours. The picketing on December 13 caused a cessation of work of 3 hours before Tolfree and Vickers were discharged. However, since the work force did not return to work for the re- mainder of the day, their picketing caused a cessation of work of the full 8-hour day. Therefore, the picketing on December 7 and 13 caused a total work stoppage of 15 hours, not 24 hours. It would appear that the Industrial Board did not even properly and fairly construe article VIII, section 3 of the contract, since no evidence of bargaining history or past practice involving application of this provision was sub- mitted or discussed at the arbitration hearing. Finally, it is clear from the above analysis of the record findings that the Industrial Board's decision is pal- pably wrong and inconsistent with the objectives of Sec- tion 7 and Section 8(a)(1) of the Act (the right of em- ployees to engage in concerted activity for their mutual aid and protection, free from acts of restraint or coercion by their employer). 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record does not show that the Union, by language in the contract or conduct by the Union, waived the Section 7 rights of union members. In the absence of such evidence, the Industrial Board could not have found that the Union waived Section 7 rights of its mem- bers. John Morrell & Co., 270 NLRB 1 (1984). Moreover, since the General Counsel established that the arbitration hearing before the Industrial Board was not recorded and no findings of fact or written disposition of the issues were made, I am satisfied that she has discharged her burden of persuasion in demonstrating meritorious defi- ciences in the arbitral process. Consequently, based on the entire record and above- discussed reasons, I conclude and find that the Industrial Board's decision is clearly repugnant to the purpose and policies of the Act, and I deem it inappropriate to defer to its decision.2 2 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.