Koppel, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1980

251 N.L.R.B. 567 (N.L.R.B. 1980)

KO)PPEL, INC.
Koppel, Inc. and John Gyerman. Case 21-CA-
18110
August 26, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELI.O
On May 14, 1980, Administrative Law Judge Jay
R. Pollack issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed cross-exceptions, a supporting brief, and a
brief in answer to the General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
MEMBER PENELLO, concurring in the result:
I would defer to the arbitration award herein.
See, e.g., my dissenting opinion in General Ware-
house Corp., 247 NLRB No. 142 (1980).
' The General Counsel has excepted to certain credibility findings
made by the Admillstl-aiise Law Judge It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spcct to credibilit) unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products. Inc. 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing his findings
In his Decision, the Administrative Law Judge incorrectly states that
Almeida obtained a copy of the minutes on March 23. 1979, showing
Gyerman's re-registration. Almeida's testimony indicates that this oc-
curred sometime earlier, during the first pait of the month This finding is
insufficient to affect the results reached herein
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK. Administrative Law Judge: This
case was heard before me at Los Angeles, California, on
January 31, 1980, pursuant to a complaint and notice of
hearing issued on October 16, 1979, by the Regional Di-
rector for Region 21 of the National Labor Relations
251 NLRB No. 96
Board. The complaint, which alleges violations of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act,
as amended, herein called the Act, is based on a charge
filed on August 20, 1979, by John Gyerman, an indiidu-
al, herein called Gyerman, against Respondent, Koppel,
Inc.I
Issues
The primary issues are:
1. Whether Respondent violated Section 8(a)(3) and
(1) of the Act on or about April 17. 1978, by discontinu-
ing to utilize Gyerman as a "steady" employee because
Gyerman complained to the Union and the State of Cali-
fornia Occupational Health and Safety Administration
(Cal OSHA) regarding safety conditions and other work-
ing conditions.
2. Whether the Board should defer to an arbitrator's
decision of June 14, 1979, which upheld Respondent's
position that Gyerman should be returned to the joint
dispatch hall.
All parties have been afforded full opportunity to par-
ticipate, to introduce relevant evidence, to examine and
cross-examine witnesses, and to file briefs. Based upon
the entire record, upon the briefs filed by counsel, and
upon my observation of the demeanor of the witnesses, I
make the following:
FINDINGS oFt FACT
I. JURISDICTION
At all times material herein, Respondent has been a
California corporation engaged in the operation of a bulk
cargo terminal facility located at the Long Beach Harbor
in Long Beach, California. During the past 12 months
Respondent performed services in excess of $50,000 for
customers located within the State of California. each of
which, in turn, sold and shipped goods and products
valued in excess of S50,000 directly to customers located
outside the State of California.
The complaint alleges, the answer admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the
Act.
It. THE LABOR OR(iANIZATION INVOI VEt)
The complaint alleges, the answer admits, and I find
that at all times material herein Local 13, International
Longshoremen's and Warehousemen's Union, herein
called the Union, has been a labor organization within
the meaning of Section 2(5) of the Act.
IIt. THE ALIEGED UNFAIR I.ABOR PRACIiCI S
A. Background
Respondent and the Union have been parties to a
series of collective-bargaining agreements since 1962. It
is undisputed that the Union and Respondent have en-
joyed a good-working relationship since that time. In
The name (of Respondent appears as amended ia the hearing
Koppel, Inc. and John Gyerman. Case 21-CA-
507
568 I)DECISI()NS ()OF NATIONAL LABOR RELATIONS BOARD
November or December 1969, Respondent hired Gyer-
man at the Union's request.
Gyerman first went to work for Respondent in a part-
time capacity and subsequently became a full-time em-
ployee in January 1970. He worked full time until he suf-
fered a work-related injury in December 1972. Gyerman
went back to work for Respondent in May 1977 as a
result of an agreement reached through mediation; the
terms of said agreement are material to the resolution of
the issues herein, and are discussed in detail below.
Gyerman was laid off in October 1978, and, as a result of
intervention by the Union on his behalf, Gyerman re-
turned to work for Respondent in November 1978. On
or about April 17, 1979, Respondent, in a meeting with
the Union, informed Gyerman and the Union that based
on the mediated agreement of May 1977 Gyerman would
be returned to the dispatch or hiring hall operated jointly
by the Union and the Pacific Maritime Association
(PMA). The parties were unable to reach agreement on
this proposed action of Respondent and the dispute was
brought to arbitration pursuant to the collective-bargain-
ing agreement then in effect. An arbitration was con-
ducted on June 12, 1979, before a mutually selected arbi-
trator. At the arbitration, the Union, Gyerman, and Re-
spondent were provided a full opportunity to present
evidence, to call witnesses, to examine and cross-examine
xwitnesses, and to submit documentary evidence. No tran-
script of the arbitration proceeding was made. On June
14, 1979, the arbitrator issued an opinion and decision
concluding that "the Company's motion that Gyerman
be returned to the Joint Dispatch Hall as per mediation
agreement of May 6. 1977, be sustained," and that
"Gyerman be returned to the Dispatch Hall at the end of
his regular work shift, Friday, June 15, 1979." Thereaf-
ter, Gyerman, who was not working due to an injury,
was returned to the hiring hall.
B. Gyerman ' Complaints Regarding Safety and
Working Conditions
Gyerman was an alternative steward for the Union on
the day shift in March and April 1979, when Cal OSHA
conducted a safety inspection of Respondent's terminal.
On April 4, 1979, the regular steward was absent and,
therefore, Gyerman. as alternative steward, was request-
ed to accompany the Cal OSHA inspectors on their
safety inspection. Respondent's management was repre-
sented by Tom Mogan, then Respondent's grain superin-
tendent. When he was first invited to accompany the Cal
OSHA inspector, Gyerman asked Robert Boyle, the in-
spector in charge, if the car pit area in which Gyerman
worked would be inspected. Boyle answered that the car
pit area would be inspected later that day.
When he inspection group reached the car pit area,
Gyerman pointed out a safety problem in the way that
the doors of rail cars were opened and closed while cars
were moving. Gyerman also mentioned a safety problem
in the manner in which the automatic car mover was op-
erated, i.e., the employee setting cars in motion could not
see the end of the train and could not see any employee
who might be on the other side of the train. Three or
four other employees working in the area also brought
safety problems to the attention of the Cal OSHA in-
spector and engaged in discussions concerning safety
problems. Gyerman accompanied the inspectors for 8
hours on April 4, but did not accompany them on any of
the other 5 days of inspection. At the end of the inspec-
tion the Company was cited for 25 violations, which in-
cluded those concerning the car pit area. Respondent
complied with Cal OSHA's findings and took the neces-
sary corrective action. On April 5 Respondent's automat-
ic car mover broke down and the Company began using
a train to move its cars through the car pit area. The
Company used one man to drive the train, and this re-
duced the crew in the car pit area from four to three em-
ployees. Gyerman complained about the crew reduction
to Foreman Ray Cusolito and Tom Mogan. Mogan said
a three-man crew was sufficient and called Art Almeida,
manager of labor relations,2 to discuss the matter with
Gyerman. Almeida listened to Gyerman's complaint, left
Gyerman to talk to Mogan and Harold Plaisted, assistant
vice president, and returned to tell Gyerman that the
Company would put a fourth man in the car pit area.
On April 6, after the automatic car mover had again
broken down, Respondent reactivated the train and used
a man from the car pit area. Gyerman again complained
to Cusolito and Mogan about the reduction in the crew,
from four to three, in the car pit area. Mogan again
called Almeida to discuss the problem with Gyerman.
According to Gyerman, Almeida asked. "What are you
doing, trying to cause trouble for us?" and said, "You
got to give us a break on some of these things." Further,
according to Gyerman, Almeida asked why Gyerman
was causing trouble for the Company after all it had
done for him. : At that time Dave Schmidt, the steward,
approached and asked Almeida if he was trying to black-
mail Gyerman.4 Almeida denied trying to do any such
thing. Almeida did not deny this testimony, rather he ex-
plained that he became angry when Gyerman questioned
his integrity on the ground that Almeida, a former union
official, was now working for and speaking for manage-
ment. I credit Almeida's explanation of this incident,5
Almeida again discussed the manning of the car pit
area with Plaisted and Mogan. Shortly thereafter, he told
Gyerman that the Company was going to continue to
use a three-man crew. Not receiving satisfaction, Gyer-
man called the Union and within the hour Dave Arian, a
relief business agent, arrived at the terminal to meet with
Gyerman. After a brief discussion of the problem, Gyer-
man and Arian sought out Plaisted, Mogan, and Al-
meida. Arian asked Gyerman to explain his "beef" to the
company officials. After a caucus of the company repre-
sentatives, Almeida stated that Respondent would in-
crease the crew to four but in doing so the Company
' Almeida as presidenlt of the Union from April 1976 ro April 1978.
Hle became manager of labor relations I'or Respondent in November 1978
: What Almeida meant by this question will be explained in the section
Of his Decision entitled "Respondenl's Defense."
Schmidt was nt called 1t testlify at the hearing
5 Almeida testified in a straightforward and convincing manner. He
candidly gave testimony which as, at times, not favorable to his em-
ployer's position Such admissions add to his credibility as a witness.
--- ----
K()'PP'EL, INC. 560
was not prejudicing its right to seek a manning review in
the future.s
C. Respondents Alleged Refusal 7b Utilize Gverman
as a "Stead' Emplovee"
On April 17, Gyerman was called to a meeting \which,
unknown to him, concerned his status as an employee of
Respondent. Representing the Union and Gyerman were:
Gyerman, Lou Loveridge, union president; Raoul Oli-
vera, secretary treasurer of the Union, Wayne Robbins,
business agent, and Dave Schmidt, shop steward. Repre-
senting Respondent were: Mogan, Plaisted, Almeida, and
Cusolito.7 There is virtually no conflict in the testimony
concerning what took place at this meeting. Almneida,
acting as spokesman for Respondent. produced the
agreement reached as a result of mediation in May 1977.
and stated that Respondent wished to enforce the agree-
ment, i.e., return Gyerman to the joint dispatch hall.8
Gyerman and Loveridge both denied having seen the
agreement prior to the meeting. While Loveridge was re-
viewing the agreement, Gyerman accused Respondent of
retaliating against him because of the manning dispute in
the car pit area. Almeida denied the accusation and
stated that Respondent had lived up to its agreement and
wanted the Union to do the same. Loveridge proposed a
compromise: that Gyerman return to the hall and that
Respondent immediately request that Gyerman be dis-
patched to its terminal. Almeida rejected the offer stating
that Respondent had the right to do so but was not
going to so restrict itself at that time. The meeting ended
without resolution of the dispute.
6 The collectie-bargaining agreement provided for a review 1of nmall
ning by a joint labor relations committee. In fact. in June 179. the manl-
ning requirements of the car pit area were eviewved and resulted in a re-
duction in the crew
7 Cusolito. Gyerman's foreman, was also a member of he Union
T'here is no eidence a 1to whether Cusolito was a superis or or agent of
Respondent However, such a determination is not material to a resolu-
tion of the issues herein
N The mediation agreement, dated May 10, 1977. signed by Art A Al
meida for the niin, Curt Johnson, the mediator, and Harold L Plasited
and Bruce F Harmon for the Employer, provides:
Mr John Gyerman would report for work 08(X) Friday. May ,
1977.
I. Mr (Gyerman will conduct himself in a proper manner with due
respect to his employer
2 The committee also agreed that the employment of Mr John
Gyerman shall not disturb in any respect the seniority status of the
presently emplosed men at Koppel Bulk Terminal. 21(1 211 Long
Beach.
3 The parties agreed that w hen John GOerman becomes a jointly
registered longshoreman he shall return to the joint dispatch hall If
the employer chooses to rehire John Gyerman they may place, at
their option, an order calling for the dispatch of John Gyerman
4 he employer does not concede that the employment of John
Gyerman shall il any manner disturb the now existing seniorit) list
of employees
5 If work does nol warrant the employ)menl of any eniployee due
to the following conditions:
A Lack of cargo, etc
B Consiruction f new and existing facilities The employer reaf-
firmns hi rights io laS-off ad rehire as provided for under the
agreement belweel te parties
6. here shall be no dscrimination against the employee or the
emptoer
Almeida testified that he called Loveridge ol or ahout
Mlarch 23, 1979,. to arrange a neetitng to discuss Gier-
man's status. Initially. I.oeeridge stronigl denied that Al-
mcida called him prior to August 6 to arrange the mcetl-
ing. However, on cross-examination, L.overidge's denial
became less convincing. He admitted having a uiol
caucus and a union coniventiotn during the saltC limnl
period. He further admitted having many other itmatters
to attend to. He could find no record of the calls or even
the meetings concerning this matter and he did not
check the Union's files regarding Gyerman's dispute .ith
Respondent. In contrast to Loveridge's vague recollec-
tion. Almeida testified in a convincing malnner that on or
about March 23, after being informed by Roger Nlihre.
Respondent's vice president, of the Company's intent to
enforce the May 10 agreement, he called l .overidge to
set up a meeting. I overidge said he wkould call Alntieida
back after acquainting himself .,itlh the dispule. I.o cr-
idge did not call bhack. and Almeida again called to ar-
range a meeting. Loveridge did not specifically den Al-
meida's testimony and I was not imprcssed by his agtie
denials. I therefore credit the testimotny of Alhnieida.
whom I find to be an impressive and credible v.ilness.
that he called l.overidge on or about March 23. to ar-
range for a meeting to discuss Gyerman's status ith Re-
spondent.
A second meeting. at Respondeit's request. vas held
on May 21 to discuss Gyerman's return to the hiring
hall. Gyerman, absent from work due to an injury, was
not present at this meeting. The parties ere still unable
to reach agreement, and Almeida requested that tile
matter be put before an arbitrator.
1). 7he .-Irhitraliop Proceeding
The parties mutually agreed to the selection of George
Love as the arbitrator of the instant dispute. Love is an
experienced arbitrator in the longshore industry and has
work experience in the industry. Further. Lo e is a
former union official. The arbitration was conducted
before Love on June 12. The parties were not represelt-
ed by attorneys. However, all parties were given an op-
portunity to present witnesses, cross-examine witnesses.
submit documentary evidence, and argue orally. No tran-
script of the arbitration proceeding was made.
There is no dispute that at the arbitration proceeding
Gyerman argued that Respondent was attempting to
return him to the dispatch hall because of his complaints
to Cal OSHA and/or because of his role in the manltlring
dispute. Moreover, Loveridge argued that Respondent
and the Union had no authority to negotiate awaN Gver-
man's rights. Almeida argued that Respondent had colil-
plied with its obligations under the agreement and that
the Union and Gyerman had to satisfy their part of the
agreement. At the end of the proceeding Arbitrator
Love stated that he would consider all the evidence and
arguments in rendering his decision.
On June 14, 1979, Arbitrator Love issued a written
four-page opinion and decision finding that Gyerman
should be returned to the dispatch hall on June 15. 1979.
Arbitrator Love's decision made no mention of Giyer-
man's claims of retaliation for the complaints to Cal
KOPPEL. IC. evl
570 DE{CISIONS OF NATIONAL I ABOR RELATIONS BOARD
OSHA or for the complaint concerning manning of the
car pit area. Rather, Love, stated:
This dispute involves a question of whether Mr.
Gyerman's employment with the Company, was
conditional by mutual consent, or if he was em-
ployed via regular procedures as outlined in the
contract, and therefore his employment governed
by all terms of the contract, including termination
provisions.
In sum, Arbitrator Love found that the mediation agree-
ment was valid and binding and, therefore, ruled that it
could be enforced to return Gyerman to the joint dis-
patch hall. Subsequently, on August 20, Gyerman filed
the instant charge alleging a violation of Section 8(a)(1)
and (3) of the Act.
E. Respondents' Defense
Respondent's defense as to the merits of the instant
dispute requires a factual recitation of Gyerman's em-
ployment history. Gyerman first began working as a
longshoreman on the waterfront in the Long Beach-Los
Angeles Harbor area in 1960. In 1969, Gyerman was
convicted of pilferage and as a result was deregistered as
a longshoreman. 9 Gyerman was, therefore, unable to
work in the industry.' 0 Curt Johnson, then president of
the Union, obtained employment for Gyerman by
making a personal appeal to George Koppel, then Re-
spondent's president and majority shareholder. Koppel
had on other occasions employed "deregistered" long-
shoremen as a "favor" to the Union. l Thus Gyerman
went to work for Respondent as a part-time employee in
November or December 1969. Gyerman became a full-
time employee in January 1970 at Respondent's Cerritos
facility. Gyerman suffered a work-related injury in 1972,
anid did not attempt to return to work for Respondent
until Merch 1977.
By March 1977, Respondent's Cerritos facility at
which Gyerman had worked had been closed. Respond-
ent took the position that Gyerman did not have senior-
ity, was not a registered longshoreman, and should not
be returned to work. Gyerman filed a grievance with the
Union. Almeida, on behalf of the Union, and Plaisted
and Bruce Harmon, agreed to submit the dispute to a
mediator. By agreement of the parties the dispute was
mediated by Curt Johnson, then a former union presi-
dent, whose role was to aid the parties in resolving their
EFmplolmnent i he longshore industry, the west coast ports, for the
most part, is governed by the collective-bargaining agreements between
the ILWD and PMA, a multiemployer trade association which represents
almost all employers in the industry for purposes of collective bargaining
Under the collective-bargaining agreements a joint dispatch hall is
maintained for "registered" longshoremen A "deregistered" longshore-
man cannot use the joint hiring hall except as a casual (for daily assign-
ments)
o Gycerman on cross-examination refused to admit that he was deregis-
tered by the joint dispatch hall Gyerman testified that he was deregis-
tered by P'MA but was registered with the Union Such testimony is con-
trary to documented fact and detracts from Gyerman's credibility as a
witness
i] It is noted that all collectise-bargaining agreements beltween Re-
spondent and the Union govern the terms and conditions of employment
of 'registered longshoremen"
dispute. Johnson had no authority to decide the matter,
only to aid in a resolution prior to arbitration. On May 5,
Johnson, Gyerman, Almeida, Harmon, and Plaisted met
and reached agreement on Gyerman's return to work for
Respondent. The parties agreed that Gyerman would
return to work May 6, the next day, and that the parties
would meet on May 10 to sign an agreement embodying
the terms and conditions of Gyerman's return to work.
The agreement provided, inter alia, that when Gyerman
became a jointly registered longshoreman he should
return to the joint dispatch hall.' 2 Gverman returned to
work on May 6, and on May 10 the parties executed
their written agreement.
Almeida testified that shortly after May 10 he gave
Gyerman a copy of the written agreement. Almeida fur-
ther testified that Gyerman was satisfied \with the agree-
ment as Gyerman's expressed desire was to again be dis-
patched as a registered longshoreman. Gyerman did not
deny expressing such a desire but testified that he had
never seen the signed agreement until April 17, 1979. As
discussed above, Almeida was an impressive witness.
Further his version of these events is more probable than
that of Gyerman. I, therefore, find that Almeida gave
Gyerman a copy of the agreement in May 1977.
Gyerman's return to work in May 1977 was unique in
that he was neither a "steady" employee nor dispatched
from the hiring hall. When Respondent needed employ-
ees, Mogan would call Almeida who would first dispatch
Gyerman, and then have the remaining number of em-
ployees requested dispatched from the hall. This proce-
dure was followed for several months until there was
sufficient need for employees on a regular basis. t
In September 1976, in preparing for a reduction in
force, Roger Myhre. vice president of operations, re-
quested and received a seniority list of Respondent's em-
ployees. Tom Mogan prepared a seniority list for Myhre
which listed Gyerman on the bottom of the list with a
question mark alongside the employee's name-instead of
a seniority date. Mogan informed Myhre that he did not
know what seniority to give Gyerman and was told by
Myhre to treat Gyerman as the least senior employee.
Thus, in October 1978, Gyerman was laid off along with
two other employees.
Gyerman brought his layoff to the attention of the
Union, but, Respondent, based on Myhre's orders, stood
firm. Thereafter, in an attempt to have Gyerman reinstat-
ed, Union President Loveridge contacted both George
Koppel, Respondent's president, and Art Alnieida,
former union president, at that time working as a long-
shoreman. Almeida intervened at Loveridge's request
and was able to persuade Respondent to take Gyerman
back, based on the May 1977 agreement. Myhre agreed
to take Gyerman back on the conditions that: he receive
no backpay; his seniority date back only to 1977; and
that the May 1977 agreement remain in effect. Further,
" At the time of the mediation. German and Almreida were attempt-
ing to have Gyerman reregistered by the Coast Labor Relations Commit-
tee The attempts to have Gyerman reregistered were unsuccessful until
February 23. 1979
I: 1 credit the testimiono of Mogan and Almeida who both testified in
a straightforward and candid manner. To the extent that (iserman denied
receiving more than oine dispatch call from Almeida, he is not credited.
K()OPPEL INC
Myhre requested that, to protect the Company from
legal action bh any adversely affected employee, the
Union give Respondent a written agreement holding it
harmless from any such action. Almeida agreed to these
conditions. 4 Gyerman returned to work in November
1978.
On or about February 23, 1979, Almeida, then em-
ployed as Respondent's manager of labor relations, re-
ceived a phone call from a union official telling him of
Gyerman's reregistration. Almeida notified Myhre of this
call and Myhre asked Almeida to obtain written confir-
mation of this action. Shortly after receiving this phone
call, Almeida congratulated Gyerman on the reregistra-
tion. Almeida testified that he congratulated Gyerman at
work near the grain elevator." Almeida happily con-
gratulated Gyerman and expressed the opinion that
Gyerman should stay with Respondent but said the deci-
sion was up to Gyerman.
On or about March 23, Almeida received a copy of
the minutes of the Coast Labor Relations Committee
granting Gyerman's reregistration request. Almeida
brought the minutes to Myhre as requested. Myhre told
Almeida that he wanted the Union to fulfill its obliga-
tions under the May 10, 1977. agreement. Almeida told
Myhre that he would set up a meeting with the Union.
and shortly thereafter called Loveridge for that purpose
Analysis and Conclusions
1. The deferral issue
Respondent contends that the Board should defer to
Arbitrator Love's award under the doctrine of Spielberg
Manufacturing Company, 112 NLRB 1080 (1955). Gener-
al Counsel argues that the Board should not defer to the
arbitration award on the ground that the arbitrator did
not consider, and failed to pass on, the statutory issues.
In Spielberg, supra, the Board stated as a matter of
policy, and in furtherance of the desirable objective of
encouraging voluntary settlement of labor disputes, it
would recognize and defer to awards of arbitrators
where: (a) the arbitration proceedings are fair and regu-
lar; (b) the parties to the arbitration have agreed to be
bound by the arbitrator's decision; and (c) the arbitration
decision is not repugnant to the purposes and policies of
the Act. Added later in Raytheon Comnpany, 140 NLRB
883 (1963), was the criterion that the arbitrator must
have considered the unfair labor practice issue and ruled
on it.
In Electronic Reproduction Service Corp. Madison
Square Offset Company. Inc., and Xerographic Reproduc-
tion Center, Inc., 213 NLRB 758, 762 (1974), the Board
stated it would in the absence of "unusual circum-
stances" defer under Spielberg to arbitration awards deal-
ing with discharge or discipline cases even where no in-
4 Respondent never receied a "hold harmless' agreement
, Ciyerman estificd that Alineida called him to congratulate him oln
the reregistratioll and requllcd him to sIla silh Respondent Gvarinlll
lestified that Alineida said Ihc Cotmpalny needed his experience and that
Gyerman c.ould make more mone h remnalnibg ith Respondellt A,
discussed ahboe. Alnicida;l as a more rcredible saltncr than (Gi trllal.
Further. Alneida admils, that he cxpressed the opinion Ihll (isrnia
should remain iIh KRpondnil Thts, I credit Almeida', xcril O If the
coilnvrsatioal
dication existed as to whether the arbitrator had consid-
ered, or had been presented with, the unfair labor prac-
tice issue involved. The purpose of such a rule as to
encourage contractual efforts at dispute seltlement by
preventing "two bites at the apple." However, the Board
has recently overruled Electroic Reproduction in Siubur-
ban Motor Freight. Inc., 247 NLRB No. 2 (1980), wherein
the Board stated:
The Board can no longer adhere to a doctrine
which forces employees in arbitration proceedings
to seek simultaneous vindication of private contrac-
tual rights and public statutory rights, or risk waiv-
ing the latter. Accordingly, we hereby expressly
overrule Electronic Reproduction and return to the
standard for deferral which existed prior to that de-
cision.7 In specific terms, we will no longer honor
the results of an arbitration proceeding under Spiel-
berg unless the unfair labor practice issue before the
Board was both presented to and considered by the
arbitrator. In accord with the rule formerly stated
in Airco Industrial Gases we will give no deference
to an arbitration award which bears no indication
that the arbitrator ruled on the statutory issue of
discrimination in determining the propriety of an
employer's disciplinary actions. In like accord with
the corollary rule stated in Yourga Trucking, e
shall impose on the party seeking Board deferral to
an arbitration award the burden to prove that the
issue of discrimination was litigated before the arbi-
trator.
I See Yourga lrucking. Inc., 197 N[.RI 2 119
7
2): .rio Intdu-
trial Garel-Pacific. a Dlsioon of.4ir Redumton ('opran lmInorporat-
ed, 195 NL RB 676 (1972). Ravtheon Comparny. 141() N R 883
(1963) .Monsanto Chemical Conmpany. 130 NI R 1()7 (I 61)
Respondent contends, and I agree, that: (a) the arbitra-
tion proceedings were fair and regular; (b) the parties to
the arbitration had agreed to be bound by the arbitrator's
decision; and (c) the arbitrator's decision is not repugnant
to the purposes and policies of the Act. The critical issue
is whether Arbitrator Love's statements at the hearing,
that he would consider all the evidence and all the argu-
ments, and subsequent sub silentio rejection of Gyerman's
arguments in his decision. are sufficient "indication" that
the arbitrator ruled on the statutory issue of discrinmiia-
tion in determining the propriety of Respondent's motive
in enforcing the May 1977 agreement.
The Board's decision in General Warehouse Corp., 247
NLRB No. 142 (1980), issued since Suburban Motor
Freight, leads me to conclude that the Board would not
defer to the arbitrator's award in the instant case. In
General Warehouse, the Board majority (Member Penello
dissenting) found deferral inappropriate under circum-
stances where evidence of the discriminatee's protected
activities was presented but the arbitrator made no refer-
ence to such evidence in his decision. nor did lie make
any findings concerning the acti ities as they may have
related to the discharge.
In the instant case, the arbitrator's written decision
provides no basis for concluding that he gave any coni-
571
5s72 I)ECISIO)NS O)F NATI()NAL. LABOR RELATIONS BOARD
sideration or weight to the issue of whether Respond-
ent's enforcement of the May 1977 agreement was moti-
vated bh unlawful considerations. Thus, the case falls
within tile controlling purview of Suburban Motor
lreighl and General Warehouse Corp. I do not believe
that the arbitrator's statement, that he would consider all
the evidence, sufficient to change the result herein. I,
therefore, conclude that deferral to the instant arbitration
award is not appropriate.
2. The alleged discrimination against Gyerman
The General Counsel contends that Respondent's en-
forcement of the May 1977 agreement was in retaliation
for Gyerman's protected concerted activities in making
complaints to Cal OSHA, to Respondent and to the
Union on April 4, 5. and 6, 1979. Initially, the record
conclusively establishes that, in raising safety problems
during the Cal OSHA inspection, Gyerman was engaged
in protected concerted activity. Wayne Trophy Corp., 236
NLRB 299, 308 (1973); Alleluia Cushion Co.. Inc., 221
NLRB 999, fni. 2 (1975). Similarly, in pressing for a four-
man crew in the car pit area, Gyerman has engaged in
activity protected by Section 7 of the Act. The Union
Fork and Hloe Company, 241 NLRB 907 (1979); Blount
Brothers Corporation, 230 NLRB 586, 596 (1977); Morri-
son-Knudsen Company, Inc., 213 NLRB 280, 290 (1974).
See Bunney Bros. Construction Co., 139 NLRB 1516, 1519
(1962).
Thus, the critical issue is whether Gyerman's protect-
ed concerted activities were a motivating factor in Re-
spondent's enforcement of the May 1977 agreement.
Thus, General Counsel argues that Respondent had no
intention of returning Gyerman to the joint dispatch hall
until Gyerman made complaints about safety and work-
ing conditions on April 4, 5, and 6, 1979. In my view,
the record establishes conclusively that Respondent had,
since May 1977, consistently intended to return Gyerman
to the dispatch hall upon his reregistration by the Coast
Labor Relations Committee.
The timing of the April 17 meeting, coming so soon
after the protected concerted activities, raises a suspicion
of a causal relationship between the activities and the en-
forcement of the May 17 agreement. However, I have
found that Almeida sought to arrange such a meeting on
or about March 23, 1979, prior to the activities at issue.
Such a finding precludes a conclusion that Respondent
had no intention of returning Gyerman to the joint dis-
patch hall until Gyerman made complaints about safety
and working conditions. Surely it would defy logic to
find that the refusal to continue to utilize Gyerman as a
"steady" employee was in retaliation for protected activi-
ties which occurred after the decision was made. See
Mantac Corporation and Tackett & Manning Coal Corpo-
ration, 231 NLRB 858 (1977); and Brown Manufacturing
Corporation, 235 NLRB 1329, 1334 (1978).
Prior to the May 1977 agreement, Respondent had
contended that Gyerman had no seniority with the Com-
pany. It agreed to reemploy Gyerman under conditions
which indicated that it still maintained the position that
Gyerman had no seniority. Prior to the layoff of October
1978, Respondent listed Gyerman on its records as
having no seniority. When Gyerman grieved his layoff,
Respondent had a legitimate concern that other employ-
ees, adversely affected, might pursue legal action based
on preference granted to Gyerman. The Company finally
relented and recalled Gyerman on condition that the
Union hold the Company harmless in the event that such
legal action was taken, and on the further condition that
Gyerman return to the dispatch hall when he became
reregistered. Thus, Respondent's intent to return Gyer-
man to the hall was consistently established almost 2
years prior to the April 17 meeting.
In the context of record evidence establishing that Re-
spondent and the Union have enjoyed a good working
relationship, there is no evidence that Respondent har-
bored any animosity against union or protected concert-
ed activities. The record reveals that Respondent amica-
bly settled the manning dispute with the Union. Further,
Respondent fully complied with the Cal OSHA report
and remedied all violations. The animus expressed by Al-
meida against Gyerman was not based on the employee's
complaints about working conditions, but rather was
based on the accusation that Almeida was an "ogre" for
working in management.
Finally, Almeida's suggestion in February that Gyer-
man remain with Respondent, and his apparent reversal
in April, is fully explained by the circumstances. In Feb-
ruary, Almeida, genuinely happy and proud that the re-
registration he had personally worked so hard for, had
finally reached fruition. Under such circumstances, it is
understandable that Myhre, as he so testified, did not
want to immediately tell Almeida to send Gyerman back
to the hall. However, when Almeida obtained a copy of
the reregistration, Myhre instructed him to comply with
the May 1977 agreement, and return Gyerman to the
hall. Because of his intimate involvement with the situa-
tion, Almeida sought to arrange a meeting to inform
Gyerman and the Union of the proposed action. Re-
spondent did not send Gyerman back to the hall until
after its motion to do so was granted by the arbitrator.
Thus, I find, contrary to the allegations of the complaint,
that Respondent did not discontinue to utilize Gyerman
as a "steady employee" because Gyerman engaged in
union activities or other concerted activities protected by
Section 7 of the Act.
Upon the foregoing findings of fact, and the entire
record, I make the following:
CONCI USIONS o LAW
1. Respondent, Koppel, Inc., is an employer within the
meaning of Section 2(2) of the Act, and is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 13, International Longshoremen's and Ware-
housemen's Union, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(3) of the
Act, as alleged in the complaint.
4. Respondent did not violate Section 8(a)(1) of the
Act, as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
K()OPPEL. INC
Section I10c) of the Act, I hereby issue the following
recommended:
16 All motions inconsistent %,ith this recommended Order are hereby
denied. In the event no exceptions are filed as provided by Sec 102 4,h of
the Rules and Regulations of the National abor Relations Board, the
findings, conclusions, and recommended Order herein shall, as prr\ovided
in Sec 102.48 of the Rules and Regulations. be adopted by the Board and
ORDER'6
It having been found and concluded that Respondent
Koppel, Inc., has not engaged in unfair labor practices.
the complaint is dismissed in its entirety.
hbecome Its findings. conclusions. and ()rder. and ill i bhlet'lon thercelo
shall be deemed s aled for ill pulrp.ses