Sea-Land Service, Inc.

National Labor Relations Board - Board Decisions

Mar 2, 1979

240 N.L.R.B. 1146 (N.L.R.B. 1979)

1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sea-Land Service, Inc. and Al S. Cherry. Case 32
CA 142 (formerly 20 CA 12372)
March 2, 1979
DECISION AND ORDER
BY CHtAIRMAN FANNIN( ANI) ME MBERS JtNKINS.
PiN .l..), ANI) TRI- SI)ALI
Upon a charge filed on January 18, 1977, by Al S.
Cherry, an Individual, and duly served on Sea-Land
Service, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 32, issued a com-
plaint and notice of hearing on January 25, 1978,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(3) and (I) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing be-
fore an administrative law judge were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleged in substance that on January 12, 1977.
Respondent reprimanded and then discharged Al S.
Cherry because he engaged in protected activity for
the purposes of collective bargaining or other mutual
aid or protection. On February 2. 1978, Respondent
filed its answer to the complaint admitting in part.
and denying in part, the allegations in the complaint.
On June 26, 1978, Respondent filed directly with
the Board a Motion for Summary Judgment. On July
10, 1978, counsel for the General Counsel filed a Mo-
tion for Summary Judgment. Attached to the Gener-
al Counsel's motion was a stipulation which stated,
inter alia, that on June 29 and July 5, 1978, the par-
ties stipulated that for the purposes of their re-
spective motions for summary judgment the parties
would be bound by the factual findings contained in
arbitrator John Kagel's award issued September 29,
1977. The parties further stipulated, for the same pur-
poses that the arbitration proceedings appeared to
have been fair and regular and that all parties had
agreed to be bound. The parties specifically did not
agree to whether the arbitrator's decision was or was
not clearly repugnant to the purposes and policies of
the National Labor Relations Act. Subsequently, on
July 20, 1978, the Board issued an order transferring
the proceeding to the Board and a Notice To Show
Cause why Respondent's and/or the General
Counsel's Motion for Summary Judgment should or
should not be granted. Respondent thereafter filed a
response to the General Counsel's brief in support of
240 NLRB No. 147
the Motion for Summary Judgment.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
As stated above, the facts have been stipulated to
be those contained in the arbitrator's decision. The
only Spielbe;g criterion which has not been stipulat-
ed to is whether or not the arbitrator's decision is
clearly repugnant to the Act. The General Counsel
argues that the decision is repugnant to the Act and
we should not defer to it. He also contends that,
based on the facts as found by the arbitrator, and to
which all parties have agreed to be bound, we should
grant the General Counsel's Motion for Summary
Judgment. Respondent submits that the decision is
not repugnant to the Act; that all the Spielherg crite-
ria have been met: and that consequently we should
defer to the arbitration decision. Respondent also
pleads that since the arbitrator's decision resolves all
factual and legal issues we should grant its Motion
for Summary Judgment.
The arbitrator found that Cherry, who had been
castigated by Respondent for not following company
procedures, had filed a grievance and requested an
investigation. Respondent issued Cherry a written
reprimand. The arbitrator found that the reprimand
was a result of Cherry's having filed a grievance. A
meeting was held among Respondent. Cherry, and
his union representative: at this meeting Cherry used
an obscenity. Respondent summarily discharged
him. The arbitrator made the pivotal finding on page
12 of his decision.
In other words, the Company has tainted its
own actions by using the filing of the grievance
as one of the bases for [Cherry's] warning letter
which was at least a contributing cause to his
outburst.
This does not mean that the grievance filed by
[Cherry] the day before had any merit. The
point is that [Cherry] was entitled to have that
matter heard under the grievance procedure and
not be disciplined for so requesting. And, the
action of the Company in discharging [Cherry]
for his outburst where this question was inextri-
cably involved is, therefore, not for just cause.
However, the arbitrator concluded that Cherry
should not have used the offensive language and
.p,/eIhrc .fanl/lu turin ( nflpan . 1 12 Nl Rli 1080 I( 955 l idcr Spil.
hrg' the BoH rd set forth the following cilterla, all of , hich must he mlll.
before Ihe Board will defer to an arbitration award: (I) the proceedings
must he fair and regular: 12) all prties must agree to he hbound: and (3) the
decision nust not he repugnant to the purposes and policies of the Act.
SEA-LAND SERVICE, INC. 1147
that, while discharge was too severe, because the
Company's action was tainted, he felt a suspension
was justified.
The General Counsel contends that Cherry was
engaged in protected activity when he uttered the ob-
scenity and therefore the suspension is repugnant to
the Act. Moreover, the General Counsel argues that
the arbitrator did not grant a make-whole remedy
and that, in and of itself, is repugnant. Respondent
takes a contrary position on both points.
As the arbitrator found, the discharge was based.
at least in substantial 2 part, on Cherry's filing of a
grievance-conduct which is protected by Section 7
of the Act. Respondent disciplined Cherry for engag-
ing in protected activity. The arbitrator ruled that
discharge was too severe for engaging in that protect-
ed activity, however, that a suspension for an obse-
cenity uttered in that connection would be an appro-
priate penalty. But that is not the true issue in this
proceeding. The arbitrator specifically held that Re-
spondent's discipline was tainted and that Cherry's
obscenity was not the cause. Nor did Respondent
suspend Cherry. It is no answer to conclude, as the
arbitrator did, that Respondent might reasonably
and lawfully have suspended Cherry for using an ob-
scenity. It did not do so, and overreaction to a viola-
tion of a rule or accepted standard may itself be an
indication of pretext.
The Board has long held that:
Any discharge predicated in whole or in part on
the effort of an employee, representing himself
and one or more other employees. to present
such grievances. absent unusual circumstances
not present here, would be a discharge for pro-
tected union and concerted activities and there-
fore a violation of the Act. The merit or lack of
merit in the grievance that would be presented,
if permitted, is immaterial)
Accordingly, we find that the arbitrator's decision
is clearly repugnant to the Act and, based on the
stipulated facts, we grant the General Counsel's Mo-
tion for Summary Judgment.
Our dissenting colleague misconstrues the issue as
well as our decision: we do not reach the remedial
aspect of the award in this case.4 This case deals sole-
-Our dissenting colleague makes much of our use of the word "subslan-
tial." The relevant portion of the arhitrator's decision is quoted Ihosev We
have no difficulty with "substantial" where the arbitrator has chosen the
phrase "inextricably involved." In an\ event, our characterization is hardis
misleading, especially in light of the quotation.
7op r.eah Manufac(uring (Compan. In. 145 NI.RB 429. 432 (1963).
Aver lor Sanitarium. 175 NLRB 751 (1969). enfd 436 F2d 45 (9th ('ir
1970).
4 The dissent finds undue support In the cases it cites for the proposition
that less than a make-whole remeds is not clearl\ repugnant to the Act. It Is
true that n (ron Zellerhlch ( orporuroin. 215 NLRB 385. 387 (1974). a
ly with the punishment of an employee for exercising
a Section 7 right. The dissent seeks to separate the
cause of the suspension from the protected conduct
with which it is "inextricably involved," as the parties
have stipulated. It blithely dismisses, as a fictitious
suspension. the arbitrator's substitution of what
could have been a reasonable penalty only if Cherry
had been punished for misconduct rather than pro-
tected activity. We concede the fiction.
On the basis of the entire record. the Board makes
the following:
FIN[IN(;S OF FACT
I TIE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, with its prin-
cipal place of business in New Jersey and with anoth-
er place of business in Oakland, California, has been
engaged in interstate and international transporta-
tion of freight by water and rail. In the course and
conduct of its business operations during the past
calendar year, Respondent received gross revenues in
excess of $50,000 from the transportation of goods in
interstate commerce.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein.
II TIlE .ABOR OR(;ANIZAIION INVOLVED
Office and Professional Employees Union. Local
29. AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
1I IE UNFAIR LABOR PRA('II('ES
Since on or about January 12. 1977, Respondent
by its officers. agents. and representatives has inter-
Board panel adopted the Administrative Law Judge's dismissal ofr a com-
plaint where the arbitrator awarded less than full backpav. but "insubordi-
nation as the reason for the discharge" not an unfair labor practice. Like-
wise. Inliernalronaul Great LiAXes Shpping (ompoan,- 215 NLRB 701 (1975).
dismissed a complaint based on Spielherg where the rbitraltr ordered rein-
statement without backpas. but once again the discharges were not for
protlected actisilt ( Ohio frr Almi.l (rporrratliln 209 NILRB 577 1974), at
fn 2. specificalkl disavowed the Administrative law Judge's characlerlizl-
lion of the arbrllrator's award as a "compromise" and his ralltonale suggest-
ing deferral to such an award The decision was based on the fact that the
emploee had obtained his emplo)ment under false pretenses. To be sure In
-iAe Brt, Inic. 220 NI.RB 1301 (1975). a panel ma;orit stated that a
lump-sum awalrd n lieu of a "make-whole" remedy was insufficient to re-
quire ouster of an arbitrator', decision bhut not without Chairman Fanning's
dissent More 1to the point is ('cne 4irtafi ( . 220 NlRB 73 (1975)
(then-('hllirnman Murph, concurring (in other grounds), where a panel held
that reinstatement without a make-whole remed? is repugnant to the Acl
SEA-LAND SERVCE. NC. 147. . ._ A, .. ._
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered with, restrained, and corced, and is interfering
with, restraining, and coercing, employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act by certain acts and conduct including the
following:
1. On or about January 12, 1977, Respondent is-
sued a warning to employee Al S. Cherry in retalia-
tion for his having engaged in protected concerted
activity.
2. On or about January 12, 1977, Respondent dis-
charged employee Al S. Cherry for engaging in pro-
tected concerted activity and, since that date, until
on or about September 29, 1977, Respondent failed
and refused to reinstate him to his former position.
Accordingly, we find that Cherry was reprimanded
and discharged because of his protected concerted
activities, and by the said conduct Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
I11, above, occurring in connection with the opera-
tions 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. TE REMEDY
Having found that Respondent reprimanded Al S.
Cherry in violation of Section 8(a)(1) of the Act and
discharged him in violation of Section 8(a)(3) and ()
of the Act, but has subsequently reinstated him with-
out prejudice to his seniority or other rights and ben-
efits previously enjoyed, we shall order that Respon-
dent make him whole for any loss of wages or other
benefits to which he may be entitled to as a result of
the discrimination against him, with interest, as pro-
vided by F.W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977),' and expunge from his personnel record all
reference to the discharge and/or suspension.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
5See, generally, Isis Plumbing & Heaing Co.. 138 NLRB 716 (1962).
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. On January 12, 1977, Respondent, through its
documentation manager, Kay Miller, interfered with,
restrained, and coerced its employee Al S. Cherry,
thereby committing an unfair labor practice within
the meaning of Section 8(a)(1) of the Act, by issuing
a reprimand to Cherry in retaliation for Cherry hav-
ing filed a grievance.
4. Respondent, by discharging Al S. Cherry on
January 12, 1977, until September 29, 1977, for hav-
ing engaged in protected concerted activities, thereby
discouraged membership in a labor organization, and
thereby engaged in an unfair labor practice within
the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Sea-Land Service, Inc., Oakland, California, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Reprimanding, discharging, or taking any
other reprisals against its employees in retaliation for
their engaging in protected concerted activities for
their mutual aid or protection.
(b) Discouraging membership in a labor organiza-
tion of its employees, by discharging its employees or
by discriminating in any other manner in regard to
their hire, tenure of employment, or any term or con-
dition of employment.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Rescind the discharge and/or suspension of Al
S. Cherry and make him whole for any losses that he
may have suffered as a result of the discrimination
against him in accordance with the provisions of The
Remedy section above.
(b) Expunge from the personnel record of Al S.
Cherry any reference to his discharge on January 12,
1977, or his subsequent suspension.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
SEA-LAND SERVICE, INC. 1149
(d) Post at its Oakland, California, facility copies
of the attached notice marked "Appendix." Copies
of said notice, on forms provided by the Regional
Director for Region 32, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER TRUESDALE. concurring:
I concur in the majority's finding that the
arbitrator's decision is repugnant to the Act. I reach
this result, however, only because the arbitrator him-
self found, on the facts presented to him, that one of
the reasons for the Employer's disciplinary meeting
with Cherry on January 12. 1977-which precipi-
tated Cherry's "outburst" and which, in turn, led to
his immediate discharge-was the fact that Cherry
had filed a grievance against the Employer on the
previous day. Thus, the arbitrator concluded that
Cherry's "outburst" and use of profanity during a
disciplinary meeting was triggered in part by the Em-
ployer's action in giving him a warning letter be-
cause, inter alia, he had filed a grievance. When
Cherry protested what he considered an unfair warn-
ing letter, albeit he did so in an intemperate manner,
he was promptly discharged for alleged insubordina-
tion. In this context, the arbitrator concluded that
the discharge was caused, at least in part, by Cherry's
filing a grievance. The arbitrator nevertheless con-
cluded that some form of discipline short of a dis-
charge (i.e., a 9-month suspension without pay) was
warranted by the insubordination. This conclusion is
contrary to Board law and, therefore, repugnant to
the Act. The Board has consistently held that an em-
ployer may not lawfully discipline or discharge an
employee for alleged insubordination where such in-
subordination was itself provoked by the employer's
unfair labor practice.7 In my view, this principle is
6 In the event that this Order is enforced b a judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
Hawaiian Hauling Service, Ltd. 219 NLRB 765 (1975). Member Penello.
in his dissent, asks what my position would be if Cherry, instead of using a
profanity, had physically assaulted his supervisor during the grievance
meeting. I would ordinarily prefer not to dignify a question that is so obvi-
ously intended to bait, but since asked. I will state that the difference be-
sufficiently well established that the arbitrator's con-
trary decision is clearly repugnant to the Act.
Nor does the foregoing analysis contradict the ap-
proach I embraced in The Kansas City Star Compa-
nv.8 where I stated:
The majority reviews the record evidence, sees
no irregularities in the proceedings and no facial
errors in the arbitrator's factual findings, and
then examines the arbitrator's legal conclusion
to see if, on the facts he has found, it is consis-
tent with Board law.
In this case, unlike Kansas City Star, the result
reached by the arbitrator is not consistent with
Board law. Accordingly, I do not believe that defer-
ral to the arbitrator's decision is appropriate under
Spielberg Manufacturing Company.9
MEMBER PENELLO. dissenting:
My colleagues in the majority have once again
demonstrated that they are firmly committed to a
policy which is clearly at odds with our congressional
mandate to "encourag[e] the practice and procedure
of collective bargaining." Their policy also under-
mines the public interest by unnecessarily adding to
the Board's swollen docket of cases.
The legal issue presented is simply whether the
arbitrator's decision is "clearly repugnant" to the Act
under the Board's Spielberg doctrine." If it is not
clearly repugnant, then the Board will defer to the
tween a physical assault and a verbal one is a difference painted in black
and white. not grays. Therefore, if Cherry had shot, bit, kicked, or hit his
super visor under the circumstances present in this case., I have no doubt but
that I. and presumably all the Board Members. including Member Penello.
would have found the conduct so far beyond the pale as to lose its protec-
tion under the Act. Thus. as the Board said in Hawaiian Hauling, supra at
766:
We recognize. of course, that an employee may engage in conduct
during a grievance meeting which is so opprobrious as to be unprotect-
ed.
Cherry's outburst here, however, was a verbal one and, therefore, not so
"opprobrious," as man) Board and court decisions have made clear. See.
... .L. R.B. .v. Mueller Brass Co., 501 F.2d 680 (5th Cir. 1974).
236 NLRB 866 (11978). Member Penello erroneously suggests in his dis-
sent that. because the result I reach here is different from the result I
reached n Kansas Cit Star. my views concerning Spielberg have changed.
This is simply not so. as a careful reading of my separate opinions there and
here will readily reveal. Thus, in both cases I reviewed the record to de-
termine if there were irregularities in the arbitration proceeding and in both
cases I found no such irregularities. Similarly. in both cases I reviewed the
arbitrator's decision to determine if there were facial errors in his factual
findings. Again, in both cases I found no such errors. Finally, in both cases
I examined the arbitrator's legal conclusions to see if, on the facts the arbi-
trator has found, it is consistent with Board law. Sucn an examination in
Kansas C(ty Star persuaded me that the arbitrator's conclusions were, in-
deed. consistent with Board law and, therefore, not repugnant to the Act. In
this case. however, a similar examination persuades me, for the reasons
stated above. that the arbitrator's legal conclusions are not consistent with
Board law and. therefore, are repugnant to the Act, It is clear, therefore,
that m view of what is and is not "repugnant to the Act" under the Spiel-
berg standard has not changed.
112 NLRB 1080 (1955).
Sec I of the Act.
Spielberg Manufacturing Company. 112 NLRB 1080 (1955).
SEA-LAND. SER ICE .NC .1.4.
_ _ . .. _ .
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arbitration award in this case.l2 As discussed below,
the award was not clearly at odds with the statute
and reflected a legitimate recognition of the rights
and obligations of the parties. Nevertheless, despite
Board precedent to the contrary, my colleagues in
the majority refuse to defer to the arbitral decision.
Although the majority opinion briefly recounts
some of the pertinent facts, a more comprehensive
recitation of the relevant events is necessary in order
to appreciate fully the arbitrator's award." The
Charging Party, Al S. Cherry, was employed by the
Respondent Company in late 1976 in its traffic de-
partment. In early January 1977.' 4 a supervisor in
that department informed the traffic department
manager, Kay Miller, that Cherry was disturbing one
of her employees, Jennie Jensen, with questions con-
cerning tariff rates. Miller prepared an interoffice let-
ter dated January 7 to Cherry's immediate supervis-
or, Debbie Pericola, which stated that the latter
should tell Cherry that he should not make tariff in-
quiries of Jensen but rather to another individual
designated to handle such questions. Pericola showed
Cherry the January 7 letter from Miller and dis-
cussed the matter with him. However, he became bel-
ligerent and demanded to see Miller. Miller met with
Cherry, who claimed that the January 7 letter was
negative, derogatory, and unfair, and that he could
talk to Jensen any time he wanted to despite Miller's
instructions. Subsequently, Cherry wrote a letter dat-
ed January II to Miller protesting her January 7 let-
ter, and attached to it a grievance concerning the
matter. On January 12, Miller and Fred Davis, a per-
sonnel specialist, drafted a warning letter to Cherry,
citing his verbal insubordination and letter dated
January 11. Immediately thereafter, Miller and Davis
met Cherry to discuss his grievance, at which time
they handed him the warning letter. Cherry read it
and then, in a voice which was loud, disrespectful,
belligerent, and rude, stated:
. .[T]he company must be crazy if they think
that they can give [me] instructions like this. [I]
can stand on the highest mountain shouting
anything III] want to about the President of the
United States....[I] could say anything [1]
wanted to anybody anytime [II wanted to, and,
Kay Miller, you must be out of your fucking
mind if you think you can change me.
12 Under Spilberg, the Board will defer if (I) the proceedings appear to
he fair and regular. 121 all parties had agreed to be bound bS the arbitration
award, and (3) the decision of the arbitrator is not clearly repugnant to the
purposes and policies of the Act. The parties stipulated that the first two
criteria were met.
I IThe parties stipulated to the factual findings of the arhitrator's deci-
sion.
14 All dates hereinafter are in 1977
At that point, Davis terminated Cherry. Miller con-
curred in Davis' decision stating: "There's no way I
can run a business and have an employee who will
stand up and say that the company cannot tell him
how he's going to do his job and in the process swear
at me while he's doing it."
The arbitrator concluded that the warning was not
for just cause because one of its bases was Cherry's
January II letter, to which his grievance was at-
tached. The arbitrator reasoned that Cherry was free
to file grievances without being disciplined for assert-
ing his rights.
The arbitrator also concluded that the discharge
was not for just cause. He noted that the Company
made no attempt to calm Cherry down or to see if he
was going to adhere to his intended course of out-
right defiance of any company order, and failed to
give consideration to whether Cherry's past work rec-
ord was good, bad, or indifferent. In addition, the
arbitrator stated that "the Company has tainted its
own actions by using the filing of the grievance as
one of the bases for the Grievant's warning letter
which was at least a contributing cause to his out-
burst."
However, the arbitrator also discussed Cherry's
obligations as an employee. He stated:
It does not require major analysis to under-
score that the Grievant is under an obligation to
carry out his job as directed by his Employer
irrespective of his personal feelings. .... A ver-
bal expression of refusal to do so may cause the
Company to discipline the Grievant. .... Simi-
larly, the use of words such as "fucking" when
directed at Supervisors, especially, where, as
here, there is no normal use of such terms as
shop talk, is also a measure of disrespect for
which discipline can occur.
While the Company's action is tainted as stat-
ed above, and the Grievant must be reinstated,
his own actions on January 12 continued his
course of self-help from the day before. He had
read the warning letter . . . and [would have
been] protected had he filed another grievance.
He rather chose to act as he did and he is re-
sponsible for his actions.... A disciplinary
suspension from January 12, 1977, to the date
hereof is for just cause as is his reinstatement
The General Counsel alleged that Respondent vio-
lated the Act by issuing a warning to Cherry and by
discharging him. It is clear from the foregoing that
the arbitrator considered those matters and found
that the warning and discharge were not for just
cause. Thus, the arbitrator ordered Cherry reinstated.
SEA-LAND SERVICE. INC. 1151
But the arbitrator also found that Cherry's own ac-
tions of refusing to carry out his job and using vulgar
language to his supervisors breached his legitimate
obligations to the Company. Accordingly, although
the arbitrator reinstated Cherry, he denied him back-
pay by creating the fiction that Cherry should be
"suspended" during the pendency of the grievance.
The rationale employed by the majority in finding
the arbitrator's decision to be repugnant to the Act is
quite confusing.'5 Nevertheless, it appears as though
the majority has taken issue with the arbitrator's fic-
titious "suspension" of Cherry in order to arrive at
an equitable remedy. Thus, in essence, the majority is
actually disputing the remedial aspect of the arbitra-
tion award, which it contends is clearly repugnant to
the Act.
However, the Board has already addressed this is-
sue of whether it should defer to an arbitration
award which provides for the remedy of reinstate-
ment without full backpay. The Board has concluded
that such awards are not clearly repugnant to the
Act, consequently, deferral is appropriate.'6 Thus,
not only is the majority's rationale puzzling, but its
conclusion that the arbitrator's decision is clearly re-
pugnant to the Act is also perplexing in light of
Board precedent."
The opinion of my colleagues in the majority once
again demonstrates their predilection to defer to an
arbitration award only when they happen to agree
with the arbitrator's decision." This pretended appli-
I In addition. the majority opinion misreads the arbitrator's decilsln in-
sofar as it states that the arhitrator found that (herry's discharge was based
at least in substantial part on his filing of a grievance. The arbitrator clearls
stated that Cherry's filing of a grievance served as a partial hasis for the
warning letter, which in turn was a contributing reason for his oulthurt.,
which in turn served as a partial basis for his discharge The majoritN's
version of the arhitrator's decision is therefore misleading. urthermore.
Respondent did not "discipline Cherry for engaging n protected actipits"
as the majority contends. Rather. it disciplined him for his outburst and use
of profanity, While the outburst ma have been related to CherrN's gries-
ance the arbitrator's award properly recognized that ('herr} went beond
the bounds of legitimately protesting his discipline and entered the area of
insubordination Thus, the majority's attempt to distinguish ('ron ZeLlir-
bach Corporation 215 NLRB 385 19741 (see fn. 4 of the majority opinion). is
misplaced.
ISee ('rown Zellerbach ( rporaion. 215 NLRB 385, 387 ( 1974): Intrna-
tional Great Lakes Shipping (mpanrm, 215 NRB 701. 703 (1974): Ohio
Ferro-Allir (Corporation 209 Nl.RB 577 ( 19741. See also fkii' Bros. Inl.
220 NLRB 1301 ( 1975), enforcement denied on other grounds 5501 F2d 535
(l977). But see Cessna .4ircrafti (C. 220 NLRB 873 (1975).
The majority's claim that "we do not reach the remedial aspect of the
award in this case" is peculiar In light of the fact that thes onlk disagree
with the arbitrator insofar as the remedy is concerned
Is See, e.g., Douglas Aircraft (ompann (Componenr of AMcDonnell Dmouhlas
Corporation. 234 NL.RB 578 ( 1978) (dissenting opinion of Member Penelli):
Hawaiian Hauling Service, Ld., 219 NLRB 765,767 (1975)(dissenting opin-
ion of Members Penello and Kennedy): Dreic & Krunlp Manufactrrin . 1,1,
221 NI.RB 309 (1975) (concurring opinion of Member Penelio: (Clara Blar
Ion Terrace (onvale.cent ('enter. 225 NLRB 1028, 1029 1976) (dissenting
opinion of Members Penello and Walther) See also he anm (ittl Star
Companv. 236 NLRB 866 (19781 (concurring opinion of Member Irues-
dale): Teraco, Inc Producing Departmenln tlmousion Diosion, 233 NlRH 375
( 1977) (dissenting opinion of Member Penello)
cation of the Spielberg doctrine effectively serves to
oust arbitrators of any real authority to issue final
adjudications to disputes over provisions in collec-
tive-bargaining agreements, since my colleagues in
the majority have now assumed for themselves the
role of final arbiter for the parties over such matters.
Thus, it is readily apparent that the majority seeks to
change the third Spielberg criteria from "merely re-
pugnant" to "merely erroneous," thereby substitut-
ing their judgment for that of an arbitrator. This re-
sult is patently at odds with the policies of the Act."
As the Board has stated:
If complete effectuation of the Federal policy
is to be achieved, we firmly believe that the
Board . . . should give hospitable acceptance to
the arbitral process as "part and parcel of the
collective bargaining process itself," and volun-
tarily withhold its undoubted authority to adju-
dicate unfair labor practice charges involving
the same subject matter, unless it clearly appears
that . . . the award was clearly repugnant to the
purposes and policies of the Act....
To require more of the Board would mean sub-
stituting the Board's judgment for that of the
arbitrator, thereby defeating the purposes of the
Act and the common goal of national labor poli-
cy of encouraging the final adjustment of dis-
putes, "as part and parcel of the collective bar-
gaining process." 20
Contrary to the position he recently took in Kansas
City Star, supra, Member Truesdale now also seeks to
change the Spielberg standards. Thus, he does not
defer because the award "is not consistent with
Board law," a much looser standard than the Spiel-
berg "clearly repugnant" test. In addition, as is ap-
parent in his concurrence, Member Truesdale is
merely substituting his factual judgment for that of
the arbitrator. Contrary to Member Truesdale's con-
tention, insubordination provoked by an unfair labor
practice is not protected when accompanied by ex-
treme behavior.2 t Where an employee engages in
If this matter had not proceeded to arbitraion but instead had only
been brought before the Board, I might have concluded that Cherry was
entitled also to full backpac However, once the parties submit a matter to
arbitration. I am bound hb Spielhberg to defer to the arbitral award where it
is not clearly repugnant to the Act even if I would otherwise disagree with
the result reached b the arbitrator.
nt I rnatinal Hariester ( ompaun ilndanapolis WlorA.l 138 NLRB 923.
927. 929 (1962). enfd uh norm Fhoma D RarLser v. N LR R . 327 F2d 784
(7th Cir 19641. cert. denied 377 S. 11()3
a Would Member ruesdale find Cherrs's nsubordination protected if
(herr. for example. had shot, bit. kicked, or hit his super isor? ]The Board
has loing held that not onls deeds. but also words. mas remove an
emploee's conduct from the Act's protection 7 1t Helper. 7 NLRB 255.
(Contnued
SEA-LAND SERVICE. NC.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
physical violence the result is obvious. Where, as
here, the abuse is verbal, the line dividing acceptable
from unprotected behavior is not clearly demarked
but is a gray area in which all circumstances should
be considered. This the arbitrator did in finding that
Cherry crossed the line. That Member Truesdale
would draw the line differently does not make the
arbitration award repugnant to the Act.
It is also particularly disturbing to me that cases of
this nature continue to congest the Board's overbur-
dened resources. The Board has repeatedly advised
the public that its caseload is now of crisis propor-
tions, and the backlog of cases awaiting hearing con-
tinues to grow. Although other remedies have been
suggested and the Board's budgetary resources con-
tinue to expand to battle the problem, the best rem-
edy is to pare down the Board's docket of cases by
permitting and encouraging parties to make final ad-
justments of grievances arising over the application
of collective-bargaining agreements by resort to
methods agreed upon by themselves. This policy of
encouraging collective bargaining and private dis-
pute resolution is firmly embedded in the Act,22 and
has been embodied in the Spielberg doctrine for over
two decades. The majority's failure to faithfully fol-
low that policy results unfortunately in unwarranted
264-265 (1938) an employee "roundly cursed" a floorboy; Garcrest Division
of United Mills Corporation, 118 NLRB 158, 164-165 (1957) (use of "a four-
letter synonym for excrement" concerning a supervisor); Rockland Chsler
Plymouth, Inc. 209 NLRB 1045, 1051 (1974) (mechanic told service manager
to tell general manager "to go f-k himself").
22 Secs. I and 203(d).
delay and increased resort to adversary and bureau-
cratic proceedings. Such results hardly foster the pur-
poses of the Act. Thus, I dissent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT reprimand, discharge, suspend,
or otherwise discriminate against our employees
because they engage in protected concerted ac-
tivity for their mutual aid or protection.
WE WILL NOT discourage membership in any
labor organization, by discharging our employ-
ees or by discriminating in any other manner is
regard to their hire, tenure of employment, or
any term or condition of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL rescind the discharge and/or suspen-
sion of Al S. Cherry and make him whole for
any losses he may have suffered, with interest, as
a result of the discrimination against him.
WE WILL expunge from the personnel record
of Al S. Cherry any reference to his discharge or
subsequent suspension.
SEA-LAND SERVICE. INC.