Cone Mills Corp.-White Oak Plant

National Labor Relations Board - Board Decisions

Jan 22, 1985

273 N.L.R.B. 1515 (N.L.R.B. 1985)

CONE MILLS CORP 1515
Cone Mills Corporation-White Oak Plant and Marie
E. Darr. Case 11-CA-7458
22 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 31 December 1979 Administrative Law
Judge Benjamin Schlesinger issued the attached de-
cision. The General Counsel and the Respondent
filed exceptions and supporting briefs.'
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The case of employee Marie Darr's discharge
was submitted to the judge upon a stipulated
record to determine whether deferral to an arbitra-
tion award is appropriate under Spielberg Mfg. Co.,
112 NLRB 1080 (1955). The arbitrator found that
the Respondent did not have "just cause" under its
collective-bargaining agreement for discharging
Darr but that some discipline was warranted be-
cause she had been insubordinate. He ordered that
Darr be reinstated, but without backpay. The judge
found that deferral is not warranted because the
award was clearly repugnant to the Act. 2 We do
not agree. We believe that the judge substituted his
judgment for that of the arbitrator, ignoring a fun-
damental tenet of Spielberg—that deferral is appro-
priate even where the arbitrator reaches a result
different from the one the Board might have
reached had it considered the case de novo. Con-
trary to the judge, we shall defer to the arbitration
award and dismiss the complaint insofar as it al-
leges that the Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Darr.3
' The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 In Sprelberg the Board set forth the following criteria, all of which
must be met before the Board will defer to an arbitration award (1) the
proceedings must be fair and regular, (2) all parties must agree to be
bound, and (3) the decision must not be clearly repugnant to the purposes
and policies of the Act The parties agree that the first two conditions
have been met
3 There were also two independent allegations of violations of Sec
8(a)(1), specifically, that the Respondent (1) more si rictly enforced the
break schedule in order to discourage union and/or protected activity,
and (2) interfered with its employees' union and/or protected activities
by impeding the circulation of a petition Based on the arbitrator's find-
ings as set out below, particularly his finding that Darr should have had
permission to process a grievance, we adopt the judge's conclusion that
the Respondent violated Sec 8(a)(1) as alleged above
The parties stipulated that the facts the arbitrator recited are the perti-
nent facts in this case
A review of the facts underlines the appropriate-
ness of deferral here. At the time of her discharge
on 4 November 1977, Darr had been employed by
the Respondent for 3 years as a frame cleaner. She
had been a union steward for almost 2 years, and
the arbitrator found that she was "active and ag-
gressive in pursuing her union duties." At the time
in question, she had one written warning for leav-
ing her department without permission.
Several days prior to 2 November 1977 Darr,
along with other employees, circulated a petition
to protest the discharge of three stewards. During
this time, the Respondent inaugurated a new break
schedule. Darr protested the schedule on the
ground that it would interfere with her activities as
steward.
On 2 November Darr's supervisor gave her a
note with a schedule of the new breaktimes. Later
in the shift they met in the supervisor's office to
discuss it. When they could not agree, Darr
grieved the schedule orally, and arranged to dis-
cuss it with the overseer, the next level of supervi-
sion.
Later that evening the overseer saw the petition
in the employee's canteen. Darr and several other
employees were present at the time. He picked it
up and took it to his office, despite Darr's repeated
requests for its return. She followed him to his
office where they had a heated discussion about
both the petition and the new break schedule. He
denied her grievance about the breaktime.
About 2 hours later Darr returned with employ-
ees from the spooler department to seek the return
of the petition. Darr had worked through her own
breaktime in order to take her break at the time
scheduled for the spoolers. When she arrived at the
overseer's office, the overseer refused to return the
petition. When the employees were leaving, he
asked Darr to stay. He told her she had not fol-
lowed instructions for her break and he asked her
to go home and call in the next day. She refused,
and returned to her department.
The overseer then called the Company's security
officer, who arrived at the overseer's office with
two city policemen. The overseer went to Darr at
her work station and again asked her to leave. She
refused. In the meantime, the security officer talked
to the department head and they decided to take
no further action at that time. Darr was subse-
quently discharged for altering her scheduled break
without notifying her supervisor and for refusing to
leave the plant when instructed to do so.
On these facts, the arbitrator concluded that the
Respondent did not have "just cause" for discharg-
ing Darr. He found that her discharge for violating
the breaktime rule could not be sustained, since
273 NLRB No. 188
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under all the circumstances she should have had
permission to process her contractual grievance,
but that her refusal to leave when instructed "[was]
another matter."
Even though the Overseer's suspension was
improper at the time, the Grievant was obli-
gated to leave the plant. She failed to follow a
direct order of her Overseer. This misconduct
was insubordination under the just cause doc-
trine in the labor Agreement.
The arbitrator found, however, that this act of
insubordination was not sufficient grounds for dis-
charge. Balancing the overseer's misconduct with
respect to Darr's protected activities against Darr's
misconduct, he found that Darr should be reinstat-
ed, but without backpay because
. . . a sustaining of the discharge in this case
would leave employees with no assurances
that their agreement would protect them when
they engaged in concerted activity. At the
same time, an award of back pay would pro-
vide supervisors with little assurance that their
instructions would be obeyed by employees.
This Grievant must recognize and accept man-
agerial authority and use the grievance proce-
dure to resolve private contract disputes.
The judge found that the Respondent's only
motive for the discharge was Darr's protected ac-
tivity, and that therefore the discharge was unlaw-
ful. 4 He recommended a complete make-whole
remedy because he found that Darr's insubordina-
tion was condoned or, in any event, provoked. Be-
cause the arbitrator upheld discipline for Darr's in-
subordination and compromised the backpay, the
judge found the award "clearly repugnant."
With regard to the "clearly repugnant" standard
in Olin Corp., 268 NLRB 573 (1984), we stated that
we would not require an arbitrator's award to be
totally consistent with Board precedent. Unless the
General Counsel sustains his burden of proof that
the award is "palpably wrong," i.e., that the arbi-
trator's decision in not susceptible to an interpreta-
tion consistent with the Act, we will defer.
The arbitrator's award here meets this test for
deferral. It is well settled that a failure to give a
complete make-whole remedy does not render an
4 For this finding, he relied on the arbitrator's conclusion in a section
entitled "NLRA Issues" that there was no "compelling reason for the
discharge other than for union activity" The judge seemed to conclude
that this finding was inconsistent with the arbitrator's withholding of
backpay because of Darr's insubordination There is, however, no incon-
sistency The arbitrator found no justifiable reason for discharge, but he
did find that some discipline was warranted because of Darr's insubordi-
nate refusal to leave
award clearly repugnant. 5 As the Board stated in
Crown Zellerbach Corp., 215 NLRB 385, 387 (1974),
in adopting the decision of the administrative law
judge:
Certainly in reaching his decision and issuing
an award, an arbitrator may consider the rela-
tive merits of the positions of the parties
before him and may determine to give a com-
plete award or a partial award, depending on
how he assesses the merit of the situation.
That is all the arbitrator did here. He recognized
that:
To maintain an orderly operation, a company's
supervisors must have the authority to issue
rules and instructions with the expectation that
they will be followed by employees, including
Union Stewards. At the same time, union rep-
resentatives must have an opportunity to
present grievances and receive prompt answers
from supervisors in order to enforce the Labor
Agreement. Employees involved in grievance
processing must be protected from discrimina-
tory and retaliatory actions designed to dis-
courage their participation in the dispute reso-
lution procedures under the Labor Agreement.
It is the essential nature of the arbitration process
to balance the competing claims of the parties by
adjusting the equities involved to reach a harmoni-
ous result. That is what the parties have agreed
upon as an acceptable resolution of their labor-
management dispute. We find that the General
Counsel has not carried his burden proving that the
arbitrator's award is palpably wrong.
Accordingly, we dismiss the complaint with re-
spect to the allegation that the Respondent violated
the Act by discharging Marie Darr.
ORDER
The National Labor Relations Board orders that
the Respondent, Cone Mills Corporation-White
Oak Plant, Greensboro, North Carolina, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Strictly enforcing its employees' break sched-
ule in order to discourage its employees' union and
protected concerted activities.
(b) Interfering with its employees' protected con-
certed activities by impeding circulation of and
confiscating a petition protesting the discharge of
fellow employees.
5 See, e g, Combustion Engineering, 272 NLRB 215 (1984), where we
deferred to an arbitration award that found that an improperly dis-
charged employee was entitled only to reinstatement, and not backpay,
view of the employee's poor attitude toward improving his attendance
CONE MILLS CORP. 1517
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its facility in Greensboro, North
Carolina, copies of the attached notice marked
"Appendix." Copies of the notice, on forms pro-
vided by the Regional Director for Region 11,
after being signed by the Respondent'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 custom-
arily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
° If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT strictly enforce our employees'
break schedule in order to discourage their union
and concerted and protected activities.
WE WILL NOT interfere with our employees'
concerted and protected activities by impeding cir-
culation of and confiscating a petition protesting
the discharge of fellow employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
CONE MILLS CORPORATION-WHITE
OAK PLANT
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge.
This proceeding was submitted to me, without hearing
and upon a stipulated record, 1 to determine whether de-
ferral to an arbitration award is appropriate under Spiel-
berg Mfg. Co., 112 NLRB 1080 (1955), where the arbitra-
tor found that the discharge of Charging Party Marie E.
Darr was a violation of Section 8(a)(3) and (1) of the
Act, but also found that she was insubordinate under the
"just cause doctrine" of the applicable collective-bargain-
ing agreement. As the remedy, the arbitrator ordered
that she be reinstated to her job without backpay. The
General Counsel claims that, under Spielberg, the relief
granted is repugnant to the Act, while the Respondent
contends that, because the arbitrator found a dual motive
for Darr's discipline, the award should be deferred to.
For the reasons set forth, I find that deferral to the
award is not warranted and make my findings of facts
and conclusions of law consistent with the allegations of
the complaint, and order the appropriate remedy of
backpay and the posting of a notice.
FINDINGS OF FACT
I. JURISDICTION
Cone Mills Corporation (Respondent) is now, and has
been at all times material, a North Carolina corporation
engaged in the manufacture and sale of textile products
at various locations. Respondent's White Oak plant, lo-
cated at Greensboro, North Carolina, is the only plant
involved in this proceeding. During the past 12 months,
which period is representative of all times material, Re-
spondent received raw materials at its White Oak plant
from points directly outside the State of North Carolina
valued in excess of $50,000. During the same period, Re-
spondent, from its White Oak plant, shipped directly to
points outside the State of North Carolina finished prod-
ucts valued in excess of $50,000. As a result, I find, as
the parties have stipulated, that Respondent is now, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
I also find, as the parties have stipulated, that Amalga-
mated Clothing and Textile Workers Union, AFL-CIO-
CLC, Local 391 (Union) is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts2
Darr was hired by the Respondent on September 30,
1974. On June 14, 1977, 3 she received a written warning
' The parties' stipulation to dispense with oral testimony adduced at a
hearing is approved.
2 Pursuant to the parties' stipulation, the facts recited by the arbitrator
are the pertinent facts in this case. My recitation is almost a quotation of
the arbitrator's findings, interpolating names and certain minor clarifica-
tions, where necessary and as agreed by the parties.
3 Unless otherwise indicated, all dates refer to the year 1977.
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for leaving her department without permission. When
she was terminated on November 4, she was a frame
cleaner in the spinning department on the third shift. Her
job involved rotating through a designated area cleaning
spinning frames, heads, and the like. In December 1975,
Darr was elected to one of 8-10 union steward positions
in Respondent's plant. Prior to November 1, Darr pur-
sued her union activities and responsibilities at her dis-
cretion during her shift and was active and aggressive in
pursuing her union activities
During the several weeks prior to November 2, three
union shop stewards were discharged by the Respondent
and Darr was aware of them. Two were the subject of
complaints issued by the National Labor Relations
Board. Several days prior to November 2, Darr, along
with other employees, began to circulate a petition
among employees to protest these discharges. Supervisor
Lonnie Walker, the Respondent's overseer on the third
shift, who had been assigned to the third shift in the
spinning department for 2-3 weeks prior to Darr's dis-
charge, learned of this petition activity and reported it to
his department head, Supervisor LeRoy Drinkwater. On
Tuesday morning, November 1, Drinkwater instructed
Walker to pick up the petition if he saw it
On the prior Friday, October 28, Darr was informed
by her substitute supervisor, Elmer Dickerson, that
frame cleaners were going to be required to take their
breaks at the scheduled hours of 12 30 to 12:45 a.m , 2 30
to 2:50 a.m., and 4:45 to 5 a.m. Darr protested this break
schedule on the grounds that it limited her ability to per-
form her duties as a union steward She did not follow
the break schedule on her shifts which began on Sunday
and Monday, October 30 and 31, and the schedule was
not enforced by Dickerson. Although the new break
schedule applied to approximately 70 employees in vari-
ous job classifications throughout the plant, there was no
proof that Darr was informed of the general applicability
of the new schedule at the time it was adopted.
Darr's regular supervisor, Maurice Willis, returned to
work on Tuesday, November 1. About 11 p.m. the be-
ginning of the third shift, Willis gave Darr a note with
the new scheduled break times on it Darr asked, "When
did this happen?", to which Willis replied, "I'll get back
to you later." Darr then proceeded to her job.
About 11 30 p.m., Willis met Darr, and they went to
his office to discuss the break schedule, where they dis-
cussed the effect of the schedule on her duties as a shop
steward Willis indicated that grievances must be filed
during scheduled breaktimes, but did not state that Darr
would be given permission to leave her job at other
times for union business. At this meeting a verbal griev-
ance was made, and they agreed it should be taken up
with Walker Darr then returned to her job.
About an hour later, at 12:30 a m, Walker walked into
the canteen and found on a table the petition that he had
been instructed to pick up if he saw it. The petition, a
handwritten document, stated.
Andna Brewer was fired on a false charge of re-
fusing to be transferred to a spooling job. She did
not refuse! The only thing she refused to do was let
these supervisors push her around.
We, the undersigned, demand that she along with
the other two shop stewards who were fired be re-
instated with back pay, Christine O'Flaherty in the
Weave Room and Thomas Anderson in the Dye
House.
The petition was signed by 33 employees—Darr's signa-
ture was number one and the petition appeared to be in
her handwriting. Walker identified the document as the
one he was to pick up and took it with him
Darr and several other employees were in the canteen
when this happened. She repeatedly asked Walker to
return the petition, but Walker refused Darr followed
Walker to his office and again asked that the petition be
returned, but Walker stated that it would not be re-
turned. While there, Darr also complained about the new
break schedule There followed a discussion, the contents
of which Darr and Walker were in considerable con-
flict—a conflict left almost wholly unresolved by the ar-
bitrator. Darr testified that Walker had stated that she
did not have time to file a grievance before her break
was ended and that she could file grievances only when
she and other employees were on their breaks. Walker
testified that he had denied the break schedule grievance
and informed Darr that she had to check with her super-
visor about union activity time. He also testified that
Darr had said: "I think the assignment of break schedule
is unreasonable, absurd, and we won't follow it." At the
conclusion of this discussion, Darr returned to her job
about 12:45 a.m.
Following this meeting, Darr and several spooler em-
ployees decided to return to Walker to recover their pe-
tition. Because the break of the spooler employees began
at 3 a m, Darr decided to work past her 2:30 a.m. sched-
uled breaktime. At 2:45 am, Darr went to the restroom
and then met the spooler employees about 3 a.m They
arrived at Walker's office about 5 minutes later and again
requested and argued for the return of their petition.
Once again, Walker refused, and, as the employees were
leaving, Walker requested that Darr remain there.
Walker told her that she had not followed her scheduled
breaktime and that he believed her conduct involved a
flagrant failure to follow instructions pertaining to her
assigned break schedule Walker then suspended Darr
and instructed her to go home and call Department
Head Dnnkwater the following day Darr refused and
returned to her job. Walker noted on his records, "This
is clearly insubordination and I do not want any other
charge."
Walker then instructed Willis to keep an eye on Darr
and called the Respondent's security officer, who some-
time later appeared with two city police officers. Walker
went to Darr and requested that she leave the plant, ad-
vising her that the security officer and policemen were
waiting in his office Darr refused. In the meantime,
however, the security officer had consulted with Drink-
water and they decided to leave Darr alone. Later, Darr
was observed returning to her job 5 minutes late from
her 4 45 a.m. scheduled break Darr finished her shift at
6:30 and left the plant.
On Friday, November 4, Darr met with Dnnkwater,
who reviewed the events of November 2. He emphasized
CONE MILLS CORP. 1519
that Darr had altered her scheduled break without noti-
fying her supervisor and that she had refused to leave
the plant when instructed to do so by her overseer. Darr
was then informed that she was being discharged.
During the meeting, Darr stated that the Respondent's
rules were violated when she was not removed from the
plant. Drinkwater replied that: (1) there had been no dis-
orderly conduct; (2) Darr returned to her job without
any further incidents; (3) Darr remained on her job per-
forming her job duties and did not associate with any
groups nor attempt to disrupt the operation; and (4) Darr
was suspended and not discharged.
B. The Arbitrator's Award
The arbitrator considered separately the Respondent's
claim that Darr was discharged for insubordination and
the Union's claim that Darr was discharged for her
union activities and found that both were correct. In so
doing, he recognized that:
To maintain an orderly operation, a company's
supervisors must have the authority to issue rules
and instructions with the expectation that they will
be followed by employees, including Union Stew-
ards. At the same time, union representatives must
have an opportunity to present grievances and re-
ceive prompt answers from supervisors in order to
enforce the Labor Agreement. Employees involved
in grievance processing must be protected from dis-
criminatory and retaliatory actions designed to dis-
courage their participation in the dispute resolution
procedures under the Labor Agreement.
With these principles in mind, the arbitrator found
that, while the Respondent "had planned and attempted
to enforce scheduled break times . . . [it] also set in
motion a plan to stifle [Darr] and some thirty-two other
employees in their concerted activity to prepare a peti-
tion . . . [and that Walker] deprived [Darr] and other
employees of the opportunity to engage in this protected
activity." Darr believed that Respondent was attempting
to curtail her grievance time and her associations with
her fellow employees, and Walker's taking of the petition
provoked Darr's hostility, and the repeated refusal to
return it exacerbated the hostility. Although Darr recog-
nized, and then deviated from, the scheduled breaktime,
and stated that the schedule was "absurd" and that she
would not follow it, what precipitated her suspension on
November 2 were her "efforts to process a complaint
under the Labor Agreement and not just a fifteen minute
deviation from the scheduled break time." The arbitrator
found no evidence that the deviation either interfered
with operations or was an inappropriate time for a griev-
ance meeting, which was held at a time when all the
spooler employees were on their breaktime, thus avoid-
ing any interruption of services. Darr's failure to seek
permission for union activity time was condoned by the
arbitrator, since, if she had requested such time, it could
not have been unreasonably withheld.
Thus, up to this point, the arbitrator found no just
cause for Darr's discharge. However, he held that Darr's
failure to leave the plant was "another matter"—that she
was obligated to leave the plant and that her failure to
follow Willis' order was insubordination. Noting that
Walker's conduct and accusations contributed to and
provoked Darr's insubordination, the arbitrator refused
to sustain the discharge because that "would leave em-
ployees with no assurances that their agreement would
protect them when they engaged in concerted activity."
On the other hand, backpay was not warranted because,
if granted, that "would provide supervisors with little as-
surance that their instructions would be obeyed by em-
ployees . . . [Darr] must recognize and accept manageri-
al authority and use the grievance procedure to resolve
private contract disputes."
Turning to the alleged violations of the Act, the arbi-
trator found that Drinkwater's plan to stifle Darr's peti-
tion-preparation activities and Walker's implementation
of that plan constituted a violation of Section 8(a)(1), but
that the development and implementation of the new
break schedule was for legitimate business reasons. How-
ever, the November 2 suspension of Darr for deviating
from the break schedule was merely a means to an illegal
end. The arbitrator wrote:
Given the fact the break schedule was not en-
forced on two prior days, the fact that grievance
time was permitted at the plant, and the fact
[Walker] did not object to [Darr's] presence at the
beginning of the meeting, the reasonable inference is
that [Walker's] primary motive for the suspension
was [Darr's] vigorous pursuit of grievances and her
petition preparation activity. The removal of [Darr]
from the plant would have deprived fellow employ-
ees of a Shop Steward and discouraged their par-
ticipation in the union.
Drinkwater then became the "prime mover" in permit-
ting Darr to remain on her job for the remainder of the
November 2 shift and informing her of her discharge on
November 4, when he condoned Darr's
remaining on the job because she ceased her pro-
tected activities. In his notes he referred to the fact
that she ceased her "disorderly conduct," "returned
to her job without further incident," "did not asso-
ciate with any groups nor attempt to disrupt the op-
eration." The significant conduct which would pre-
cipitate such comments was [Darr's] engaging in
protected activities. [Drinkwater] made no attempt
to explain his decision in terms of any desire to
avoid a possible scene at the plant. Instead, he ac-
cepted her refusal to leave the plant because she
ceased her union activities. The primary motive and
concern of [Drinkwater] in taking the disciplinary
actions in this case were [Darr's] concerted union
activities. Considering the record in this case, I be-
lieve the Union has met its burden of proving that
the discharge was a violation of [Section] 8(a)(1)
and 8(a)(3).
Pursuant to the terms of the award, Darr was reinstat-
ed to her former position on October 16, 1978, having
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been on maternity leave from August 22, 1978, until her
reinstatement. She has not received backpay.
C. Discussion and Analysis
Both the arbitrator and the Respondent refer to the
discipline of Darr as a "dual-motive case." From that
vantage point, Respondent contends that if there were
two reasons for disciplining Darr, one valid under its
collective-bargaining agreement, and the other in viola-
tion of the Act, the award cannot be repugnant to the
Act4 because the reinstatement of Darr without backpay
was a remedy for its breach of contract and had nothing
to do with the Respondent's violations of the Act. On
the other hand, the General Counsel argues that, because
the arbitrator found that the Act was violated, a remedy
of reinstatement without backpay is not justified under
Board law and is per se repugnant to the Act.
It is unnecessary to rule upon the contention of the
General Counse1, 6 for I find that under well-established
principles of Board law, if a motive for the discipline of
an employee is in violation of the Act, that is sufficient
for the finding of a violation, despite the fact that there
may be other valid reasons for the same discipline John-
son Motor Lines, 228 NLRB 393 (1977). 6 Under any
reading of the award, there can be no question that the
"primary motive" for the discipline was Darr's concerted
and union activities, which were so inextricably inter-
twined with the alleged insubordination that no punish-
ment of Darr was warranted
Further, not only may it be said that a motive (again,
"primary," according to the arbitrator) was discriminato-
ry, but also a fair reading of his award indicates that the
4 Spielberg enunciates the Board's policy of deferring to the decisions
of arbitrators where the arbitration proceedings appear to have been fair
and regular, the parties agreed to be bound by the results of the arbitra-
tion, and the arbitrator's decision was not clearly repugnant to the Act
The parties agree that the first two conditions have been met
5 In Sea-Land Service, 240 NLRB 1146 fn 4 (1979), the Board
(Member Penello, dissenting) refused to reach the General Counsel's con-
tention that an award was repugnant to the Act solely because it did not
make the grievant whole for his loss of backpay, stating at 1147 fn 4
The dissent finds undue support in the cases fin cites for the proposi-
tion that less than a make-whole remedy is not clearly repugnant to
the Act It is true that in Crown Zellerbach Carp, 215 NLRB 385,
387 (1974), a Board panel adopted the Administrative Law Judge's
dismissal of a complaint where the the arbitrator awarded less than
full backpay, but "insubordination was the reason for the discharge,"
not an unfair labor practice Likewise, International Great Lakes
Shipping Co, 215 NLRB 701 (1974), dismissed a complaint based on
Spielberg where the arbitrator ordered reinstatement without back-
pay, but once again the discharges were not for protected activity
Ohio Ferro-Alloys Carp, 209 NLRB 577 (1974), at fn 2, specifically
disavowed the Administrative Law Judge's characterization of the
arbitrator's award as a "compromise" and his rationale suggesting
deferral to such an award The decision was based on the fact that
the employee had obtained his employment under false pretenses To
be sure in Fikse Bros Inc. 220 NLRB 1301 (1975), a panel majority
stated that a lump-sum award in lieu of a "make-whole" remedy was
insufficient to require ouster of an arbitrator's decision, but not with-
out Chairman Fanning's dissent More to the point is Cessna Aircraft
Ca, 220 NLRB 873 (1975) (then-Chairman Murphy concurring on
other grounds), where a panel held that reinstatement without a
make-whole remedy is repugnant to the Act
6 See, however, Colettz's Furniture v NLRB, 550 F 2d 1292 (1st Cir
1977), NLRB v Eastern Smelting if Refining Corp., 598 F 2d 666 (1979)
The Board has not acquiesced in the circuit's rationale J P Stevens &
Ca, 240 NLRB 579 (1979), Glenside Hospital, 234 NLRB 62 (1978)
only motive for Darr's discharge was her union and pro-
tected activities. Recognizing that the arbitrator wrote in
terms of a "dual-motive case" and that he characterized
Darr's discharge for protected activities as the "primary
motive," thus implying that there was a secondary
motive, nonetheless, I note that he stated: "The evidence
in this case does not show a compelling reason for the
discharge other than for union activity." If this is cor-
rect, and the parties' stipulation requires that I be bound
by the arbitrator's factual findings, I may go no further
to find some other valid reason for Respondent's disci-
pline of Darr.
Assuming, however, that there is some ambiguity in
the award, caused by the separate findings on the two
issues before the arbitrator—breach of contract and vio-
lation of the Act—and the arbitrator's reference to a
"dual-motive case," the award finds no other conduct
committed by Darr which would merit discipline under
the collective-bargaining agreement. Her failure to
follow the break schedule on October 30 and 31 was ex-
cused because the rule was not enforced. Her violation
of the break schedule on November 2 to attend a griev-
ance meeting was excused by the arbitrator on the
grounds that (1) the 15-minute deviation did not interfere
with Respondent's operations, (2) the time for the griev-
ance meetings was not inappropriate since it coincided
with the break of the spooler employees; and (3) Darr
would have been entitled to meet for union activities at
that time, had she sought permission. Darr's suspension,
he held, was thus "improper" Finally, despite the fact
that Darr's refusal to leave the plant was "another
matter," Willis' "conduct and accusations contributed to
and provoked" her insubordination, which was in any
event condoned by Drinkwater on November 4 because
Darr "ceased her protected activities."
As a consequence, I find that Drinkwater's "primary
motive and concern" in taking disciplinary action against
Darr was the sole motive 8—Darr's concerted and union
activities—and that the award is thus clearly repugnant
to the Act in finding there was just cause for discipline
under the agreement. Sea-Land Service, 240 NLRB 1146
(1979).
Further, there are two allegations contained in the
complaint of 8(a)(1) violations which the arbitration
award does not remedy and thus cannot be deferred to:
that the Respondent "[m]ore strictly enforced its employ-
ees' break schedule in order to discourage its employees'
union and/or protected concerted activities"; and that
the Respondent "[I]nterfered with its employees' union
7 There is ample justification in Board law for finding that Darr's con-
duct in refusing to leave Respondent's premises was condoned and, there-
fore, should not be considered in determining the motive for her dis-
charge Heath International, 196 NLRB 318 (1972) In any event, Darr's
conduct was provoked by the Respondent's stealing of her petition, her
antagonism because of her protected activities, and her illegal suspension
Hawaiian Hauling Service, 219 NLRB 765 (1975) While her postdischarge
conduct might not be deserving of condonation, in the circumstances
herein, It was not sufficiently serious to warrant the denial of reinstate-
ment Hagerty Catering Ca, 236 NLRB 1553 (1978)
8 For this reason, I do not rely on Douglas Aircraft Co v NLRB, 609
F 2d 252 (9th Cir 1979), cited by Respondent, which refused to enforce
the Board's decision at 234 NLRB 578 (1978) The award herein is not
susceptible of a nonrepugnant interpretation
CONE MILLS CORP. 1521
and/or protected concerted activities by impeding circu-
lation of and confiscating a petition, protesting the dis-
charge of a co-worker." The latter violation is clearly
evident from the award and requires no further discus-
sion. I find a violation. The former has also been proved
because the arbitrator found that Walker's "primary
motive for the suspension was [Darr's] vigorous pursuit
of grievances and her petition preparation activity."
In finding that the award may not be deferred to and
finding that the Respondent has violated the Act, I have
considered and I reject a number of Respondent's argu-
ments. The Board's mechanism for deferring to arbitra-
tion is by no means compromised herein. An arbitrator's
award cannot oust the Board of jurisdiction to decide
whether the Act has been violated and to remedy unfair
labor practices. International Harvester Co., 138 NLRB
923, 929 (1962), enfd. sub nom. Ramsey v. NLRB, 327
F.2d 784 (7th Cir., 1964), cert. denied 377 U.S. 1003
(1964). Issues in an award must be resolved in a manner
compatible with the Act, Eastman Broadcasting Co., 199
NLRB 434 (1972), which Congress has entrusted to the
Board to enforce. The policies of Dubo Mfg. Corp., 142
NLRB 431 (1963), 9 and Spielberg do not divest the
Board from its obligation to insure that the purposes and
policies of the Act are effectuated.
Respondent seeks to differentiate between "effectuat-
ing the purposes and policies of the Act"—a positive
test, Respondent argues—which requires more than the
Spielberg test of repugnancy—a negative test—which
leaves a "broad range of remedies which would be ac-
ceptable as not being repugnant to the Act, but yet
would fall short of fully effectuating the policies of the
Act." Although there may be some instances presented
to the Board in the future where this distinction may
have some appeal, Respondent has cited no authority to
support its proposition. Indeed, Respondent may be
hard-pressed to cite a decision where the Board, finding
that a discharge of an employee violated the Act, or-
dered reinstatement, without backpay, more than 9
months later. Community Medical Services, 236 NLRB
853 at 856 (1978).
Finally, Respondent contends that the failure to defer
herein would show that it is a waste of time for the Em-
ployer to submit to arbitration; that the declaration of re-
pugnancy would merely be the substitution by the Board
of its judgment for that of the arbitrator; and that the fa-
vorable consequences of Spielberg—the preservation of
the bargain of the parties, their "harmonious interac-
tion," the reduction of the Board's work load, and the
speed of arbitration when compared with the delay of
the Board—would be greatly diminished. Perhaps the
wisdom of Dubo and Spielberg may be demonstrated by
the fact that so few cases, such as the instant one, have
9 Darr filed a grievance concerning her discharge on November 11,
1977, and the unfair labor practice charge which instituted this proceed-
ing on February 13, 1978 On March 31, 1978, the Regional Director for
Region 11 notified the parties that further proceedings would be adminis-
tratively deferred to the grievance procedure in accordance with Dubo,
because the matters involved in the charge were pending arbitration.
After the arbitration award Issued on August 18, 1978, the Regional Di-
rector, on May 10, 1979, issued the complaint herein.
come to the Board for resolution. The arbitration process
must be resolving the vast majority of disputes.
That the Board may substitute its judgment for that of
the arbitrator is due solely to the fact that the Board, and
not an arbitrator, has the ultimate responsibility to ensure
that the Act is complied with. Where the arbitrator has
found facts which demonstrate that no violation of the
Act or the contract has occurred, or that only the con-
tract has been violated, the Board willingly defers. But
the Board cannot abdicate its responsibility when an ar-
bitrator errs in his application of the facts and defeats the
Act's purposes. Arbitration is consensual; the parties
agree that, right or wrong, an arbitrator's award is the
expedient method for resolving disputes. Not so the Act.
The parties cannot give the Board jurisdiction to dispose
of their disputes, nor can the parties divest the Board of
its obligation to effectuate the policies of the Act.
It may well be that arbitration may more quickly dis-
pose of contractual and statutory disputes, but speed is
not necessarily the only desirable aim of the Act. There
is no question that, because of its everincreasing case-
load, the Board is fully cognizant of its duty to carefully
and expeditiously dispose of the issues presented to it.
The Board has also made known that it may not "[sacri-
fice] the public interest in the vindication of statutory
rights for the sake of reducing [its] caseload." Communi-
ty Medical Services, supra at 856. At the same time, I
would be remiss if I did not note that Darr's grievance
was filed on November 11, 1977, the hearing was held
on May 18, 1978, and the award was rendered 3 months
later, on August 18, 1978. That is not the "matter of
weeks" that the Respondent refers to in its brief. This is
not to say that the delay (which, unfortunately, may be
less than the delay encountered in Board proceedings) is
unconscionable or was not justified. Unfortunately, litiga-
tion—even arbitration—takes time and will probably
never be as expeditious as the parties might like. Howev-
er, any delay is singularly unhelpful in justifying the arbi-
trator's decision to reinstate Darr without backpay. That
effectively denied her of three-quarters of a year's pay,
without discussion of why a lesser penalty might have
been imposed and why the discipline meted out by the
arbitrator was appropriate in the circumstances. Al-
though it is unnecessary for the purposes of this decision,
it appears that some consideration of the justification for
particular discipline ought to be spelled out, rather than
the unsupported discipline which is inherent because of
the delay of the arbitration process.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close, in-
timate, 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.
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Cone Mills Corporation-White Oak Plant is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Amalgamated Clothing and Textile Workers Union,
AFL-CIO-CLC, Local 391, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The arbitration award, dated August 18, 1978, con-
cerning grievant Marie E. Darr, is repugnant to the Act
and may not be deferred to.
4. By enforcing its employees' break schedules in order
to discourage its employees' union and concerted and
protected activities by impeding circulation of and con-
fiscating a petition protesting the discharge of fellow em-
ployees, Respondent engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. By suspending and discharging Marie E. Darr be-
cause of her union and concerted and protected activi-
ties, Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice, I will recommend that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Having found that Respondent discharged Marie E.
Darr on November 4, 1977, in violation of Section
8(a)(3) and (1) of the Act, but has subsequently reinstated
her without prejudice to her seniority or other rights and
benefits previously enjoyed, I will recommend that Re-
spondent make her whole for any loss of wages or other
benefits to which she may be entitled as a result of the
discrimination against her, with interest, as provided by
F. W Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977)," and expunge from
her personnel records all references to her suspension
and discharge
[Recommended Order omitted from publication.]
1 ° See generally Isis Plumbing Co, 138 NLRB 716 (1962) The General
Counsel seeks an order requiring that interest on backpay be computed
on the basis of 9 percent per annum The Board has already rejected that
requested relief Southern California Edison Co, 243 NLRB 372 (1979),
but see Hansen Cakes, 242 NLRB 472 (1979)