Trinity Trucking & Materials Corp.

National Labor Relations Board - Board Decisions

Nov 5, 1975

221 N.L.R.B. 364 (N.L.R.B. 1975)

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trinity Trucking & Materials Corp . and Lloyd Joy.
Case 25-CA-6402
November 5, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Lloyd Joy, an individual, filed a charge on July 17,
1974, which was duly served on Respondent Trinity
Trucking & Materials Corp., hereinafter called
Respondent or Company. In the charge,, it was
alleged that Respondent had discharged employees
Joy, Simmons, and Gibbens in violation of Section
8(a)(1) and (3) of the Act. The three employees also
filed grievances under their collective-bargaining
agreement protesting their discharges. Thereafter,
based on a letter from Respondent's counsel, the
Regional Director for Region 25 of the National
Labor Relations Board deferred action on the charge
pending arbitration of the grievances. On September
11, 1974, the arbitration was held, and on November
19, 1974, the arbitrator issued his award denying the
grievances. On February 27, 1975, the Regional
Director for Region 25 of the National Labor
Relations Board issued a complaint and notice of
hearing in this proceeding, alleging that Respondent
had engaged in and is engaging in certain unfair
labor practices affecting commerce within the mean-
ing of Sections 8(a)(1) and (3) and 2(6) and (7) of the
National Labor Relations Act, as amended. Respon-
dent filed an answer, admitting in part and denying
in part, the allegations of the complaint, and
requesting that the Board defer to the arbitrator's
award.
Thereafter, Respondent filed a "Motion for Sum-
mary Judgment and Transfer of Case" and a
memorandum in support thereof, with exhibits
attached. Respondent moves the Board to enter
summary judgment in its favor on the ground that
there is no genuine issue as to any material fact,
inasmuch as the grievances have been fairly and
finally resolved through arbitration. The General
Counsel filed a response in opposition to Respon-
dent's Motion for Summary Judgment, as well as a
Motion for Summary Judgment against the Respon-
dent, based on the facts admitted by Respondent in
its brief. In the alternative, General Counsel request-
ed that the case be remanded for hearing under the
provisions of Section 102.34 of the Board's Rules and
Regulations. On April 7, 1975, in opposition to the
General Counsel's response and motion, Respondent
filed a reply brief.
On April 8, 1975, the Board issued an order
transferring the proceedings before it and a Notice
To Show Cause why the Respondent's and/or the
General' Counsel's motions should or, should not be
granted. Thereafter, on April 18, 1975, Respondent
filed its "Statement in Support of its Motion for
Summary Judgment and Against Counsel for the
General Counsel's Motion for Summary Judgment."
On April 21, 1975, counsel for the General Counsel
filed his "Statement of Cause in support of His
Response to the Respondent's Motion for Summary
Judgment and Motion for Summary Judgment
against Respondent."
On April 16, 1975, counsel for the Charging Party
filed a "Motion for Enlargement of Time Within
Which To Respond to Motion for Summary Judg-
ment." On April 24, 1975, Respondent filed a
"Memorandum in Opposition to Individual Coun-
sel's Motion To Submit Evidence on the Merits of
the Case." On May 2, 1975, counsel for the Charging
Party filed a "Response to Defendant's Motion for
Summary Judgment." On May 2, 1975, General
Counsel filed a "Response to Board's Notice To
Show Cause Against Respondent's Motion for
Summary Judgment and Motion for Summary
Judgment against Respondent." On May 7, 1975,
counsel for the Charging Party filed an "Additional
Response to Respondent's Motion for Summary
Judgment." Finally, in response to counsel for the
Charging Party and the General Counsel, Respon-
dent, on May 14, 1975, filed a reply brief with
addendum.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Rulings on Motions for Summary Judgment
The complaint alleges that Respondent unlawfully
discharged employees Joy, Gibbens, and Simmons
for engaging in protected concerted activity, includ-
ing seeking to recover damages for lost wages from
the Respondent in civil litigation. Respondent moves
that we defer to an arbitral decision upholding the
discharges because, according to Respondent, the
arbitral decision meets the Spielberg standards.'
General Counsel moves the Board to issue a
Decision and Order against Respondent, containing
findings of fact and conclusions of law as alleged in
the complaint, and issue an appropriate order
remedying the unfair labor practices so found. In the
alternative, General Counsel moves the Board
i Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
221 NLRB No. 64
TRINITY TRUCKING & MATERIALS CORP. 365
remand the case for hearing. General Counsel argues
that the Board should not defer to the arbitrator's
award`because the award is repugnant to the policies
of the Act.
There is no dispute regarding most of the facts in
this case . On June 28, 1974, employees Joy, Gibbens,
and Simmons filed a civil action against Respondent,
Wabash Valley Asphalt Company, Inc.
(Respondent's largest customer), and others. The
employees' lawsuit was based on an alleged breach of
contract for failing to pay the contract scale for
wages and, truck rentals for approximately 6 years.
The employees, in their civil action, sought compen-
satory damages of $40,000 and punitive damages of
$200,000. Respondent became aware of the employ-
ees' lawsuit on June 29, 1974. Thereafter, Respon-
dent sent formal warning letters to the three
employees, stating that they must withdraw within 48
hours that portion of their lawsuit seeking, punitive
damages or they would be discharged. When the
three employees refused to withdraw any portion of
their lawsuit , they were discharged. Following their
discharges , the three employees filed grievances with
their Union 2 protesting their discharges. Employee
Joy filed an unfair labor practice charge with the
Board, alleging ` that the three discharges were in
violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended.3
On September 11, 1974, the arbitrator issued his
award , finding that Respondent was justified in
terminating employees Joy, Gibbens, and Simmons.
The arbitrator found that the discharges did not
violate either the collective-bargaining agreement or
the rights of the employees under Section 7 of the
National Labor Relations Act, as amended.
In regard to the Section 7 rights of employees filing
civil actions against their employer, the Board in
Leviton Manufacturing Company, Inc.,4 reiterated the
applicable principle that the filing of the civil action
by a group of employees is protected activity unless
done with malice or in bad faith. In denying
enforcement of our Order, the First Circuit conclud-
ed, in agreement with the Administrative Law Judge
and contrary to the Board, that the employees in that
case had filed their lawsuit in bad faith. However, as
we read its decision, the court agreed with the Board
2 Local Union No 144, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
3 Members Fanning and Jenkins do not agree with the Regional
Director's action in deferring action on the charge pending arbitration, but
believe that the Regional Director should have proceeded to the merits of
the case upon the filing of the charge, for reasons set forth in their dissenting
opinions in Collyer Insulated Wire, A Gulf and Western Systems Co, 192
NLRB 837 (1971), and related cases
4 203 NLRB 309, (1973), enforcement denied 486 F.2d 686 (C A. 1,
1973). See also Sarkes Tarzian, Inc, 149 NLRB 147 (1964); Socony Mobil
Oil Company, Inc, 153 NLRB 1244 (1965), enfd as modified 357 F 2d 662
(C.A 2, 1966)
5 Respondent contends that the bad faith of employee Joy in filing the
that the applicable principle- of law was correctly
stated in Leviton.
As it is apparent that the arbitrator, in making his
award, failed to recognize the governing principle of
law and the right of employees to sue their employer
in a civil action, we shall not defer to the arbitrator's
award. We do not refuse to defer to the arbitrator's
award because we would have reached a different
result. Rather, because the arbitrator totally failed to
view the case in light of rights accorded by the Act,
we must conclude that the award was- repugnant to
the policies of the Act.
In requesting that we defer to the arbitrator's
award, - Respondent contends that the actions of
employees Joy, Simmons, and Gibbens were taken in
bad faith and that the arbitrator so found. Under our
decision in Leviton, bad faith would render the
employees' actions unprotected. However, we cannot
conclude that the arbitrator, based on'matters apart
from the lawsuit itself,5 found any bad faith by the
employees. Rather, the arbitrator, in finding the
discharges justified, relied on the fact that the
employees brought, a lawsuit rather than grieving
under the collective-bargaining agreement and that
they requested (and failed to withdraw their claim
for) punitive damages in their .lawsuit. However, if
the right of employees to file a labor-related lawsuit
is a protected activity, the fact that the suit is filed
cannot establish bad faiths Further, although the
governing principle of law does not preclude an
examination of the civil suit and its attendant
pleadings, we do not find it particularly significant
that the employees sought punitive damages in their
civil action. The pleadings do not decide the lawsuit,
and the merits of the lawsuit, including the matter of
remedies, are best left to the court hearing the
lawsuit. The protected right of employees to file a
civil action would be seriously diluted should we,
based on the pleadings in the suit, decide that certain
aspects of the suit are without merit and therefore
establish bad faith. If the lawsuit is filed in good
faith, the fact that it may have been groundless or
that it was later dismissed on the pleadings would not
in itself make the activity unprotected or establish
bad faith. Cf. Walls Manufacturing Company, Inc.,
137 NLRB 1317 (1962). Further, the discharges are
lawsuit is established by evidence adduced at the arbitration hearing
showing that Joy had long evidenced malice toward the Respondent.
However, it does not appear that the arbitrator made a finding of bad faith
but rather found only that the actions of Joy, as well as those of Simmons
and Gibbens, were "deliberate." That finding does not answer the crucial
question of what was the motivation of the three employees Certainly, in
regard to Simmons and Gibbens, there is no finding and no evidence, based
on matters apart from the lawsuit , that they acted in bad faith
6 We note that the employees' civil action sought relief based on a period
of 6 years , whereas the grievance procedure of the contract necessitates the
filing of a grievance within 10 days of occurrence of the event out of which
the grievance arises
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not justified because the Respondent sincerely
believed the action to have been brought in bad faith
if the suit was actually brought in good faith.
The, arbitrator's ultimate conclusion was that "the
discharge of the grievants ,was imposed because of
their failure to withdraw the claim for punitive
damages ." That conclusion was obviously based on
the arbitrator's finding that the filing of a lawsuit
containing a claim for punitive damages (which
claim _ the employees refused to withdraw at the
Employer's, request) constituted "disloyalty" and not
protected activity. The arbitrator did not base his
conclusion upon any finding of bad faith by the
employees . Therefore, as it is clear that the arbitrator
failed to recognize the governing principle of law as
stated by the Board in Leviton and apply that
principle to this case, we must conclude that his
award was repugnant to the purposes of the Act and
we shall not ' defer. Accordingly, we shall deny
Respondent 's Motion for Summary Judgment.
General Counsel moves for Summary Judgment
against Respondent based on the facts admitted in
Respondent's brief. However, having examined the
Respondent's position in this case, we find' no
admission by Respondent that the three employees
filed their lawsuit in good faith. Respondent argues
that the, 'lawsuit was undertaken in bad faith.
Therefore, we find that the motive of the employees
in filing their lawsuit remains a crucial and, unre-
solved issue in this case . In light of the governing
principle of law and the facts before us, we conclude
that ' we do not have sufficient facts to resolve the
issues in this case. We shall therefore deny the
General Counsel's Motion for Summary Judgment
and allow the merits of the complaint to be decided
after a hearing before an Administrative Law Judge.
ORDER
It is hereby ordered that the Respondent's Motion
for Summary Judgment and General Counsel's
Motion for Summary Judgment be, and they hereby
are, denied.
IT IS FURTHER ORDERED that a hearing be held
before an Administrative Law Judge to be designated
by the Chief Administrative Law Judge for the
purpose of receiving evidence on the issues raised by
the allegations of the complaint.
IT IS FURTHER ORDERED that the above-entitled
proceeding ' be, and it is hereby is, remanded to the
Regional Director for Region 25 for the purpose of
arranging such hearing, and that the said Regional
Director be, and he hereby is, authorized to issue
such notice thereof.
IT IS FURTHER ORDERED that, upon the, conclusion
of the hearing, the Administrative Law Judge shall
prepare and serve on the parties a decision contain-
ing findings of fact, conclusions of law, and recom-
mendations based upon the evidence received and
that, following service of such decision on- the parties,
the provisions of Section 102.46 of the Board's Rules
and Regulations, Series 8, as amended, shall be
applicable.