Wheeling-Pittsburgh Steel Corp.

National Labor Relations Board - Board DecisionsDec 31, 1985

277 N.L.R.B. 1388 (N.L.R.B. 1985)

1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wheeling-Pittsburgh Steel Corporation and Ernest Daniel Swiger. Ca'se_8--CA-15081 31 December 1985 DECISION AND ORDER BY MEMBER5'DENNIS, JOHANSEN, AND BABSON On 28 December "'9'982 Administrative Law Judge Mary Ellen R. Benard issued the attached decision. The Respondent filed exceptions and a supporting brief. The ' General Counsel also filed exceptions and a supporting brief. On 23 February 1984 the Board remanded this proceeding to the judge' for further consideration in light of the Board's decision in Olin Corp., 268 NLRB 573, (1984).,.Tke judge thereafter, issued the attached supplemental decision ,,on 13 June 1984. The Respondent and the General Counsel each filed exceptions and supporting briefs.' The National Labor Relations Board has delegat- ed its authority in this' proceeding to a three- member panel. The Board has considered the supplemental deci- sion, and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recom- mended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Wheeling- Pittsburgh Steel Corporation, Steubenville, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i The Respondent had'requested oral argument in its exceptions to the judge's original decision The request is now denied as the record, the exceptions, and the briefs following the judge's supplemental decision adequately present the issues and the positions of the parties. 2 The Respondent has excepted'to some of the judge's credibility find- ings The Board's established policy is not to overrule an' administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We agree with the judge's finding in her supplemental decision that, under Olin, deferral to the arbitrator's award is not warranted because the arbitrator' was not presented generally with the facts relevant to re- solving the unfair labor practice We therefore find it unnecessary to rely on the judge's further finding that the arbitration proceeding was neither fair nor regular within the meaning of Spielberg Mfg Co, 112 NLRB 1080 (1955) We agree with the judge's finding on the merits that employee Daniel Swiger's refusal to work until he had implemented a contractual provi- sion permitting employees to call for a union safety inspection was both concerted and protected and that therefore his discharge violated Sec 8(a)(1) NLRB v. City Disposal Systems, 465 U S 822 (1984) We therefore find it unnecessary to pass on the judge's additional reliance on Sec. 502 MEMBER DENNIS, concurring. I agree with my colleagues' adoption of the judge's' decision, including the judge's determina- tion that deferral to the arbitration award is inap- propriate. The judge found that the arbitrator did not have before him evidence on three points crucial to em- ployee Swiger's claim that he had a reasonable belief that the ore bridge, a type of crane, was unsafe to operate. The judge also found that the ar- bitrator misread evidence on a fourth crucial point. First, the employees who warned Swiger that' the ore bridge was swaying and its legs lifting did not testify before the arbitrator; at least two were not notified of the arbitrator. The arbitrator drew an adverse inference from the employees' failure to testify, characterizing them as phantom employees. Second, the arbitrator failed to specify a basis for his statement that Swiger "neither asked nor was he prohibited from calling his safety committee- man." The uncontroverted testimony before the judge was that the foreman knew Swiger wanted a safety "man" to look at the ore bridge. Third, the arbitrator found that Goulter, the operator, on the shift following Swiger's, did operate the ore bridge and that the Union's safety man did not- confirm the presence of danger. The judge found, that the arbitrator was not informed that Coulter initially refused to operate the ore bridge, or that 'some bolts were replaced before he operated it, or under what circumstances the safety representatives agreed that the ore bridge was safe to operate. Fourth, the arbitrator found that witness McGuire testified that "he did not see the legs lifting, nor any twisting or swaying." The judge found, how- ever, that at the arbitration hearing McGuire testi- fied that he saw the ore bridge's back legs lifting when the bridge was in operation. Based on the foregoing facts, I agree with, the judge that the arbitration proceedings were not fair and regular within the meaning of Spielberg Mfg. Co., 112 NLRB 1080 (1955). But I do not 'reach that conclusion merely because the arbitrator was present with less or different evidence than was the judge. In Electrical Workers IBEW Local 1522 (Western Electric), 180 NLRB 131, 132 (1969), the Board held: [T]o disregard the award merely because cer- tain evidence was presented and contentions advanced in the unfair labor practice proceed- ing which were not presented in arbitration, would do violence to the-Board's policy of en- couraging the finality of settlements reached through voluntarily agreed-upon dispute settle- ment machinery. 277 NLRB No. 160 WHEELING-PITTSBURGH STEEL 1389 In the present case, the General Counsel has shown substantially more than that different evi- dence was presented in the different forums. The General Counsel has shown that critical evidence was not presented to the arbitrator, the arbitrator made adverse findings based on the omission of that evidence, and, most important, the arbitrator made a critical factual finding completely at odds with the testimony presented at arbitration. In these circumstances, the General Counsel has cast such substantial doubt on the fairness of the arbitra- tion proceedings that deferral is inappropriate. Nancy Recko, Esq., for the General Counsel. Francis F. Massco, Esq., of Wheeling, West Virginia, for the Respondent. DECISION STATEMENT OF THE CASE MARY ELLEN R. BENARD, Administrative Law Judge. The original charge in this case was filed on August 4, 1981,1 by Ernest Daniel Swiger, an individual, against Wheeling-Pittsburgh Steel Corporation (Respondent). On November 27 the complaint issued , alleging , in sub- stance, that Respondent suspended and subsequently dis- charged employee Swiger because he refused to continue performing assigned duties until certain safety procedures provided in the collective-bargaining agreement were completed and/or because he refused to continue work- ing in the good-faith belief that the assignment required him to work under conditions which were abnormally dangerous, and that Respondent thereby violated Section 8(a)(3) and (1) of the National Labor Relations Act. Re- spondent filed an answer in which it denied the commis- sion of any unfair labor practices and affirmatively al- leged that the National Labor Relations Board should defer to an arbitration award which had issued concern- ing the grievance Swiger filed over his discharge. A hearing was held before me in Steubenville, Ohio, on September 7, 1982. Following the hearing, the Gener- al Counsel and Respondent filed briefs, which have been considered. Upon the entire record in this case and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation with facilities located in, inter alia, Steubenville, Ohio, where Respond- ent is engaged in the manufacture and nonretail sale of steel products. Annually, in the course and conduct of its business , Respondent ships products valued in excess of $50,000 from its Steubenville facility directly to points located outside the State of Ohio. The answer admits, and I find, that Respondent is an employer engaged in i All dates herein are 1981 unless otherwise indicated. commerce within the meaning of the Act and I find that it will effectuate the policies of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATION INVOLVED The United Steel Workers of America (the Union) is a labor organization within the meaning of the Act. 111, THE ALLEGED UNFAIR LABOR PRACTICE A. Background Respondent's Steubenville East Plant, the only facility involved in this proceeding, is also known as the sinter plant. Among the jobs performed at that plant is the op- eration of an ore bridge , a large crane used to move ore and other materials from the ground to transfer cars. The ore bridge at the sinter plant moves north and south on tracks in the ore yard while a trolley moves east and west across the bridge. Materials are picked up in a bucket which is attached to the crane with cables.2 Respondent's production and maintenance employees at the sinter plant are represented by the Union and at all material times Respondent has been party to collective- bargaining agreements with the Union which contain, inter alia, the following provision: ARTICLE XII-SAFETY AND HEALTH Section 3. Joint Safety Committees. C. An employee, who believes he is being re- quired to work under conditions which are unsafe beyond the normal hazard inherent in the job, may notify his Supervisor who shall make an immediate investigation . If the employee is not satisfied with the results of the investigation, he shall be permitted to call to the job a Union safety representative. If the Supervisor and the plant Union Safety Committee representative cannot satisfactorily resolve the complaint of the employee, the co-chairmen of the plant Joint Safety Committee shall be immediately advised and an immediate meeting shall be held to con- sider and resolve the employee complaint. The co-chairmen of the plant Joint Safety Committee will agree to eliminate the condition, if such con- dition exists , or in the event of disagreement, shall advise the President of the Local Union and the Plant Manager, or their designated represent- atives, who may, by mutual agreement, stop the operation. 2 The record does not establish the dimensions of the ore bridge, al- though a photograph in evidence indicates that it is a sizeable structure; this conclusion is further reinforced by the undisputed evidence that the bucket alone weighs 14 tons. 1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Discharge of Ernest Swiger 1. The events leading to the discharge Swiger was hired by Respondent in April 1971 and, after working in various jobs became an ore bridge oper- ator about early 1977. On February 15 Swiger, who worked the 7 a.m, to 3 p.m. shift, began the shift work- ing as a motor inspector and thus did not go to work on the ore bridge until about 8 a.m. Later in the shift employee Daniel Pavkovich, who had been an ore bridge operator at the sinter plant for 2 or 3 years, noticed that the ore bridge was swaying. Consequently, Pavkovich located employee David Tressler, another experienced ore bridge operator, and they both watched the bridge and noticed that it was swaying east and west about a foot. Pavkovich and Tressler in turn telephoned motor inspectors Brian Ma- guire and Frank Marker, who joined them to go look at the bridge. When the four employees observed the legs' of the ore bridge they noticed that as the trolley passed across the front or shier legs of the bridge, the back or pier legs lifted off their mounts a distance variously esti- mated by the employees as a quarter. of an inch to an inch and a half The employees also noticed that there were only about 10 bolts holding the legs onto the mounts when originally there were between 32 and 60 and that some of the remaining bolts were so rusted that they could be snapped off the legs by hand.3 Swiger credibly testified that about 11:30 a.m.4 he saw employees Maguire, Marker, Pavkovich, and Tressler on the ground looking at the shier leg of the bridge and then saw them walk to the pier leg and again to the front where they motioned Swiger to come down. In conse- quence, Swiger stopped the crane and joined the other employees, who showed him where the bolts were miss- ing or rusted. Tressler then went up and operated the bridge to show Swiger the movement of the pier leg. When all the employees walked back to 'the front leg, Swiger noticed that the cables on the bucket were frayed and that bolts were missing out of the bucket as well. About this time Foreman and admitted Supervisor Harry Ferguson , apparently noticing that Swiger had come down from the bridge, arrived in the area,5 and 3 The foregoing account is based on the testimony of Pavkovich, Tressler, Maguire , and Marker -Although the four employees ' testimony about these events varied certain details , I nonetheless find that all the employees were generally credible witnesses They substantially corrobo- rated each other , all four remained in Respondent 's employ as of the date of the hearing (although Pavkovich was currently laid off), and they all appeared to testify forthrightly and with good recall Accordingly, the account above represents a composite of their testimony on this issue 4 Pavkovich testified that he first noticed that something was wrong with the bridge about 1.45 p in , while Swiger and Maguire testified that the employees gathered at the bridge about 11 30 am I credit Swiger and Maguire on this point 5 Marker and Tressler testified that Ferguson arrived on the scene after Tressler came down from the bridge while Maguire testified to the effect that Ferguson either arrived or was already there when the em- ployees came back from the pier leg Swiger , however, testified that Fer- guson arrived on the scene before Tressler operated the bridge and Pav- kovich did not testify when Ferguson arrived Although Swiger was a generally candid and forthright witness, I credit Maguire , Marker, and Tressler on this point and find that Ferguson arrived either while Tressler was operating the bridge or shortly thereafter the employees told him about the missing bolts and the back leg jumping when the trolley moved past the front legs. Ferguson asked Swiger if , he was going to operate the bridge and Swiger responded that he thought the bridge was unsafe, and that he wanted a safety man to look at it before he operated it again.6 It is undisputed that at this point Ferguson left the em- ployees. Maguire testified that he and Swiger "figured there would be trouble" so they went toward the sinter plant office to call a union safety representative to come to check the bridge. As- the employees approached the office, Ferguson came out and told Swiger that Carl Jen- dretzky, Respondent's maintenance foreman, was coming to see what was wrong and that Swiger was to accompa- ny Ferguson to the bridge.? Swiger credibly testified that he told Maguire to call a union safety representative while he showed Jendretzky what was wrong with the bridge and that Ferguson was standing 2 or 3 feet away when Swiger gave this instruc- tion to Maguire. Maguire credibly testified that he went into the office and tried to contact George Westling, a union member of the safety committee, but was unable to reach him. Consequently, Maguire telephoned Moe Ba- lardine, a grievance officer, who told Maguire to try to reach either Charles Stock or Cliff Spinner, both of whom were union safety cochairmen. Maguire was ac- quainted with Stock and so tried to reach him first but was initially unable to do so . Eventually Maguire talked to Stock and the latter said that he would come to the job." In the meantime, according to Swiger, Jendretzky met Ferguson and Swiger at the bridge and Swiger told him about the missing bolts and the back leg moving when the bridge was operating. Jendretzky told Swiger to op- erate the bridge and Swiger did so while Jendretzky watched. Jendretzky then told Swiger that he did not see any problem and asked Swiger if he was going to run the bridge. Swiger said he thought it was unsafe and Jen- dretzky told Ferguson, "You know what to do with him." Jendretzky also said that when the millwrights came to replace the bolts they should not snug them down because the movement would cause the bolts to snap off Then, still according to Swiger, as he and Fer- guson returned to the office Ferguson told him that he 6 Marker credibly testified that Swiger made the comment to Ferguson about wanting a safety man to come look at the bridge Although Swiger did not refer to making such a comment , it would be consistent with his statement to Ferguson that he thought the bridge was unsafe and, as noted earlier, I found Marker to be a candid witness who exhibited a good recollection of the events at issue ' Pavkovich , Maguire, or Marker did not indicate in their testimony how many of the employees went to the office Tressler testified that he, Marker, Maguire, and Pavkovich went to the office, while Swiger testi- fied that he, Maguire, Marker , and Pavkovich walked toward the office However, it is not clear ' that Swiger and Tressler were both testifying about the same part of the incident, and, in any event , as it is clear that Ferguson told Swiger to go back to the bridge with him to meet Jen- dretzky, Swiger must have been part of the group that initially went to the office. 8 Maguire testfied that he talked to Stock between 12 50 and I p in , while Stock testified that he talked to Maguire a little after 2 p in I find it unnecessary to determine the precise time of this telephone call WHEELING-PITTSBURGH STEEL should get hold of the "union man" and Swiger replied that Maguire was calling.9 Just after Ferguson and Swiger reached the office, Jendretzky telephoned Ferguson and told him to give Swiger a 5-day suspension with intent to discharge. Swiger credibly testified that while Ferguson was writ- ing out the suspension notice he said , "It isn't me giving you the slip." At that point Maguire came into the office and told Swiger that Stock was on the telephone; when Swiger talked to Stock the latter told him to stay until he ar- rived . Swiger said that he had been told to leave the premises and Stock then told him to do so. However, Swiger attempted to stay at the plant until a safety repre- sentative arrived, but at 2045 Ferguson saw him and told him to leave and Swiger did. 2. Subsequent events on February 15 It is undisputed that Robert Coulter-, the ore bridge operator on the 3-to-11 p.m. shift, arrived at work on February 15 about 2:50 and was told by Maguire that Swiger had been sent home because he refused to run the ore bridge. Ferguson asked Coulter if he would oper- ate the bridge; Coulter replied that he wanted to punch in and he was not refusing to run the bridge but he wanted his safety man to look at it first. Ferguson then told Coulter that he had until 4 p.m. to make up his mind or he would be suspended. However, at 4 o'clock, when, Ferguson again asked Coulter if he was going to operate the bridge, Coulter repeated that he was not refusing to run it but that he did want a safety man there first. Coulter then telephoned General Foreman Ernie Tripodi at home and told him about the problem. In the meantime , and following his conversation with Maguire described above, Stock telephoned Spinner and the union president and then went to the ore bridge, ar- riving there about 4 p.m Spinner, who had been contact- ed by Maguire, as well as Stock, and notified of Swiger's suspension , arrived at the plant about the same time as Stock. 10 It is undisputed that when Stock and Spinner arrived, the millwrights were replacing bolts on the bridge and the bridge had not been operated since Swiger had re- fused to run it." According to the credible testimony of Coulter, Stock, and Spinner, Tripodi arrived at the bridge sometime be- tween 6 and 7 p.m.12 and he, Spinner, and Stock agreed that Coulter would not be required to operate the bridge until certain bolts were replaced. 9 I credit Swiger's testimony about Jendretzky 's visit to the bridge and Ferguson's remark to Swiger on the way back to the office. Neither Jen- drelzky nor Ferguson testified , and, as I have indicated above , I found Swiger to be a generally credible witness. 1' Coulter testified that Spinner and Stock arrived a little after 5 p in Although I generally credit Coulter, I find that it is more likely that Stock and Spinner were accurate about the time of their arrival at the bridge. 1 I Coulter credibly testified that while he and Ferguson were discuss- ing whether Coulter would operate the ore bridge the millwrights on the 3-to-1 I p in shift were gathering their tools and getting ready to work on it. 111 Tripodi did not testify 1391 Swiger called the plant about 8:30 that evening and talked to Coulter, who told him that Stock was there, that some bolts were being replaced , and that they were about ready to try to operate the bridge. About 9 o'clock, Coulter did begin to run the bridge and, after reaching an agreement with Tripodi that the 11 p.m.. to 7 a.m. crew would do further repair work on the bridge, Stock and Spinner left. As indicated above, following Swiger's , suspension, repair work was performed on the ore bridge; Gerald Smith, a millwright, credibly testified that he and mill- wright Greg Jones were given work orders to replace bolts on the ore bridge around I p .m. on February 15, but did not actually do any of the work because they were relieved before they found the right size bolts.'3 Smith further credibly testified that replacement of the bolts could not be performed while the bridge was in op- eration. On February 25 Swiger was discharged; he subse- quently filed a grievance over the discharge. 3. The arbitration proceeding Swiger's grievance was processed through the three stages of the contractual grievance procedure and, after being denied at the third step , was heard before arbitra- tor Harry Pollock on June 12. No formal record was made of the arbitration proceeding , which lasted about 30 to 45 minutes . Apparently, the only witnesses at that hearing were Swiger, Maguire, and Stock on behalf of the Union , and Jendretzky , Ferguson , and Tripodi on behalf of Respondent.14 Pavkovich, Tressler, and Spinner all testified at the hearing before me that they did not testify in the arbitra- tion proceeding because they were not notified of it. Smith and Al Tate, two of the millwrights who worked at replacing bolts on the bridge after Swiger was sus- pended, were witnesses in the instant' hearing but not in the arbitration proceeding ; neither they nor Marker or Coulter were asked why they did not testify at the arbi- tration hearing. On June 19 the arbitrator issued his award, concluding that Swiger was discharged for just cause . In reaching this conclusion , the arbitrator found ' that Jendretzky in- spected the ore bridge after Swiger's refusal to operate it and found it safe, that Tripodi and the union safety rep- resentatives agreed that the crane was safe to operate, that "[t]here was evidently nothing left undone by the Company in conscientiously pursuing the complaint of grievant in determining whether an unsafe condition ex- isted ," and that Swiger had a poor work record, includ- ing some 11 instances of discipline between September 2, 1976, and January 9, 1981.115 13 Safety committeeman George Westlmg credibly testified to the effect that normally bolts which were seven-eights of an inch to 1 inch in diameter were used on the ore bridge , but that because the legs had shift- ed on their mounts, the holes for the bolts were no longer congruent and smaller bolts had to be used. 14 Westling was present at the arbitration proceeding but did not testi- fy. He did, however , testify at one of the preliminary grievance sessions. 15 It is worth noting , however, that Swiger had not been disciplined between October 2, 1979, and the January 9 incident. Thus, although he had had 10 instances of discipline between September 1976 and ' October 1979, his work record was unblemished for the next 15 months 1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The arbitrator noted Swiger's testimony at the arbitra- tion hearing that other employees called him down from the ore bridge on February 15, but, referring to them as the "phantom employees," found that none of these em- ployees appeared at the hearing. This finding is of course inaccurate, as it is undisputed that Maguire did appear and testify in the arbitration proceeding, but it is not clear from the arbitrator's award whether he was aware that Maguire was one of the employees who called Swiger down from the crane. The arbitrator also stated in his award that Maguire testified that he did not see the legs lifting or any twisting or swaying. However, in the hearing before me, Maguire testified that although he did not remember everything he said at the arbitration pro- ceeding, he believed that he testified that he saw the back leg jumping. Maguire further testified in the instant hearing that not all that he said at the arbitration hearing was included in the arbitrator's award and it was not worded the way he said it.16 I credit Maguire, who, as discussed above, I found to be generally an impressive witness who testified candidly and with good recollection. In addition, Maguire's testi- mony in this regard was credibly corroborated by Swiger. I therefore find that Maquire testified at the arbi- tration proceeding that he observed the back leg of the ore bridge lifting when the bridge was in operation. The arbitrator also found that Coulter operated the crane on the next shift after Swiger was suspended. However, there is no indication in the arbitrator's award that any evidence was presented to him of the facts, now undisputed, following Swiger's suspension the ore bridge was taken out of service while bolts were replaced, that the union safety representatives did not agree that the bridge should be operated until after certain bolts were replaced, and that Coulter did not operate the bridge until after that agreement was reached. Finally, the arbi- trator did not mention that Coulter refused at the begin- ning of his shift to operate the ore bridge until a union safety representative inspected it. C. Analysis and Conclusions 1. The parties' contention The General Counsel contends that Swiger had a right protected by the Act to cease working on the ore bridge until the contractual safety procedures were implemented and that his refusal to continue running the bridge was based on his good-faith belief that operating it would re- quire him to work under abnormally dangerous condi- tions . Accordingly, the General Counsel argues that under these circumstances Swiger's discharge for refus- ing to work violated Section 8(a)(3) and (1) of the Act. Respondent introduced no evidence at the instant hearing other than the joint exhibits, but contends that the Board should defer to the arbitrator's award and dis- miss the complaint. Respondent further contends that even if deferral to the arbitration award is not required is The parties stipulated that no transcript was made of the arbitration proceeding and that the arbitrator subsequently died. Thus, the only evi- dence of what was presented to the arbitrator is his award and testimony from certain witnesses about what was said at that hearing. the General Counsel has failed to establish that Swiger's discharge violated Section 8(a)(3) and (1) of the Act. 2. The deferral issue In Spielberg Mfg. Co., 112 NLRB 1080 (1955), the Board held that it would defer to arbitration awards in cases where the proceedings appear to have been fair and regular, all parties had agreed to be bound , and the award is not "clearly repugnant to the purposes of the Act." 17 Subsequently the Board added as a requirement for deferral that the unfair labor practice issues be pre- sented to and considered by the arbitrator.18 The General Counsel contends that in the instant case deferral to the arbitrator's determination that Swiger was discharged for cause is not , appropriate because the issue of whether Swiger 's discharge violated Section 8(a)(3) and (1) of the Act was not presented to or considered by the arbitrator. I agree. As discussed above, the arbitrator found that the record developed before him did not support a finding that Swiger was ordered to work under unsafe condi- tions, that Swiger 's work record indicated that he left "much to be desired as an employee," and that there was just cause for his discharge , but he did not discuss the question of whether Swiger's refusal to work on the ore bridge was protected by the Act.19 Respondent contends that because the arbitration award was a joint exhibit offered by Respondent and the General Counsel, and was admitted into evidence with- out reservation by either party, "the Board is now es- topped from disavowing the propriety , fairness , or just- ness of the award in question." I disagree . The fact that a document is introduced as a joint exhibit does not mean that the parties introducing it are bound by all the state- ments in it, any more than a party is bound by all testi- mony of his witnesses.20 In any event, the question of the probative value of the document is one for the trier of fact. Respondent also contends that the General Counsel has not adduced any evidence that the unfair labor prac- tice issues were not presented to or considered by the ar- bitrator . However, as the Board stated in Suburban Motor Freight, supra, the burden is on the party seeking deferral to establish that the statutory issue was litigated. 17 112 NLRB at 1082 12 Raytheon Co, 140 NLRB 883 (1963 ) In a later case , Electronic Re- production Service, 213 NLRB 758 (1974), the Board held that it would defer to arbitration awards in cases involving discharge or discipline as long as the party complaining of the discharge or discipline had an op- portunity to present evidence in support of a claim that the action was prohibited by the Act. However, in Suburban Motor Freight, 247 NLRB 146 (1980), the Board overruled Electronic Reproduction, supra, and an- nounced that it would no longer defer to arbitration proceedings under Spielberg, supra, unless the unfair labor practice issue before the Board was both presented to and considered by the arbitrator. Suburban Motor Freight, supra, was followed recently by the Board in Propoco, Inc., 263 NLRB 136 (1982). 1s Although the arbitrator mentioned that there was no evidence that Respondent had been "discriminatory, unfair or capricious and arbi- trary," it is clear that he was not referring specifically to discrimination within the meaning of the Act. 20 Indeed, I note that Fed it. Evid. Rule 607 specifically provides that a witness' credibility may be attacked by any party, including the party who called him WHEELING-PITTSBURGH STEEL In the instant case, there is no indication in the arbitra- tor's award. or elsewhere in the record developed before me that the issue of whether Swiger's conduct was pro- tected by Section 7 of the Act was presented to or con- sidered by the arbitrator. Finally, Respondent argues that the facts giving rise to the unfair labor practice issue are the same as those un- derlying the contractual issue . However, this contention ignores the Board holding that "merely considering the relevant facts does not necessarily lead to consideration of the statutory issue."at This is particularly true in the instant case , for the issue before the arbitrator was whether Swiger's dis- charge was prohibited by the contract, while the issue before me is whether his refusal to work was protected by the Act. Accordingly, I conclude that deferral to the arbitration award is not warranted.22 There are other reasons why deferral to the arbitration award is not appropriate in this case. As fully discussed above, the arbitrator apparently relied on (1) Maguire's alleged testimony that he did not see the back leg of the ore bridge, jump and (2) the failure to testify of Pavko- vich, Tressler, Marker, and Coulter, in finding that Swiger had no justification for refusing to work on Feb- ruary 15. In addition, the arbitrator specifically found that Swiger "neither asked nor was he prohibited from calling his safety committeeman." Contrary to the arbitrator, I have found that Respond- ent was aware that Swiger wanted a union safety repre- sentative to inspect the bridge and I have credited Ma- guire's and Swiger's testimony that the arbitrator's depic- tion of Maguire's testimony before him was in error. Further, it is undisputed that Pavkovich and Tressler, at least, were not notified of the arbitration hearing and therefore had no opportunity to testify at it. 23 In addition, there is no indication that the arbitrator was made aware of the replacement of some of the bolts on the ore bridge after Swiger was suspended, Coulter's initial refusal to operate the crane, or the circumstances under which the union safety representatives agreed with Tripodi that the bridge was safe enough for Coulter to operate. In view of the lack of any indication that such evidence was presented at the arbitration hearing and the arbitrator's erroneous findings about Maguire's testimo- ny, I conclude that the arbitration proceeding was not fair and regular within the meaning of the Spielberg re- quirement. Accordingly, I find that, irrespective of whether the unfair labor practice, issues were presented to or considered by the arbitrator, deferral to his award its not appropriate in this case.24 21 Propoco, Inc., supra. 22 See John Klan Moving & Trucking Co. Y NLRB , 411 F 2d 261 (6th Or 1969), 23 I recognize that pursuant to the arbitration clause of the collective- bargaining agreement , the Union is not permitted to call witnesses who are not members of the bargaining unit in which the grievance arises and Respondent is not permitted to L'al1 witnesses who are members of such a bargaining unit, and, thus, Pavkovich , Tressler, Marker, Coulter , and the millwrights could not have testified on behalf of Respondent at the arbi- tration hearing. Nonetheless , the question here is not who is to blame for the failure to have these potential witnesses appear, but the effect on the arbitrator 's determination of their failure to testify. 24 See Herman Bros, 252 NLRB 848, 852 ( 1980) See also Kansas 'City Star Co., 236 NLRB 866 (1978 ), in which the Board relied on its finding 1393 3. The substantive issues As stated above, the' Gehe'ral Counsel contends that Swiger's refusal to work was protected by the Act be- cause .(l) he had a right to cease working until the con- tractual safety procedures were followed and/or (2) he had a good-faith belief that operating the ore bridge re- quired him to work under conditions which were unrea- sonably dangerous. Respondent, however, contends that Swiger had no justification for refusing to work on the bridge and that he was lawfully discharged for insubordi- nation. Thus, the issue before me is whether Swiger's re- fusal to operate the bridge was protected concerted ac- tivity within the meaning of the Act. Inasmuch as the record establishes that Swiger's refus- al to work on the bridge until the safety representative arrived was prompted by -the action of four other em- ployees in calling his attention to what they viewed as unsafe conditions, I find that his activity was clearly con- certed within the meaning of Section 7 of the Act. Con- sequently, the question becomes whether this activity was also protected. The contractual safety provision, quoted above, does not specify whether an employee who believes that his work assignment requires him to work under unsafe con- ditions may refuse to work until a union safety commit- tee member makes an assessment of the situation. How- ever, Spinner, the union safety committee cochairman, credibly testified that the Union and Respondent have conflicting interpretations of the contractual provision: management takes the position that an employee who makes a safety complaint should continue to work until he talks to a safety representative, while the Union takes the view that an employee does not have to work under what he views as unsafe conditions until the union safety representative arrives and makes an inspection. As dis- cussed above, I have found that Swiger told Ferguson he wanted a safety man to check the bridge and that after Jendretzky inspected the bridge Ferguson told Swiger that he should contact a union safety man and Swiger re- sponded that Maguire-was already calling one.L5 Accordingly, I find that Swiger attempted to exercise his right under article XII, section 3, C of the collective- bargaining agreement to call a union safety representa- tive to the job and that Respondent was aware of his at- tempt to exercise this right. However, it is undisputed that Swiger was given a suspension, with intent to dis- charge before any union safety representative either that a full factual record was made before the arbitrator in deciding that deferral to his award was appropriate 2s This testimony is not necessarily inconsistent with Swiger 's earlier testimony that when he went to the office with the other employees and Ferguson told him that Jendretzky was coming to look at the bridge, Ferguson was standing 2 or 3 feet away when Swiger told Maguire to call a union safety representative. There is no evidence that Ferguson in- dicated that he had heard, Swiger's request to Maguire and, in any event, Ferguson may have forgotten the comment or had some other reason for making the suggestion . As indicated above, I generally found Swiger to be a credible witness and , as Ferguson did not testify, Swiger's testimony in this regard is not controverted I note that the arbitrator found that Swiger "neither asked nor was he prohibited from calling his safety com- mitteeman " However, as also indicated above, the arbitrator's factual findings are not binding upon me, particularly in the face of contrary, credible evidence 1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD talked with him or arrived at the site to look at the bridge. It is well established that an employee's attempts to implement the terms of a collective-bargaining agreement are protected by Section 7 of the Act, whether or not the employee's interpretation of the contract is correct or whether the employee specifically refers to a contract clause while making his complaint.26 In the instant case, the record establishes and I find that Swiger's refusal to work was based on his view that he was not required to work on equipment he believed to be unsafe unless and until a union safety representative had inspected it. I further find that Swiger's position was not so unreasonable as to be outside the protection of the Act, particularly inasmuch as the contract is not explicit on this point and is open to conflicting interpretations by Respondent and the Union. Indeed, the conclusion that Swiger's interpretation of the contractual safety provi- sion is not unreasonable is supported by the fact that after Swiger's suspension, Coulter also took the position that he would not operate the ore bridge until a union safety representative inspected it, and no discipline what- soever was administered to him. Additionally, as emphasized by the General Counsel in her brief, Section 502 of the Act specifies that an em- ployee's good-faith refusal to work because of abnormal- ly dangerous conditions is not to be deemed a strike under the Act. The record before me demonstrates that Swiger was called down from the ore bridge because other employees were concerned for his safety and that he observed that bolts were missing or rusted through and that the pier leg moved up and down when the bridge was operated. Significantly, it is undisputed that following Swiger's suspension Respondent sent mill- wrights to work on the bridge and did not require Coulter, the bridge operator on the next shift, to work on the bridge until at least some of the bolts had been replaced. In light of these circumstances, I find that Swiger reasonably believed that operating the ore bridge would expose him to abnormally dangerous working conditions and I conclude that his refusal to run the bridge was therefore protected by Section 502 of the Act.2 7 In light of all the foregoing, I conclude that Swiger's refusal to work on the ore bridge until a union safety representative arrived was protected by Section 7 of the Act and that Respondent's discharge of Swiger for refus- ing to work under these circumstances violated Section 8(a)(1) of the Act.28 26 Firch Baking Co, 232 NLRB 772 (1977) 27 Roadway Express, 217 NLRB 278, 280 (1975) 28 The complaint alleged that the discharge violated Sec . 8(a)(3) as well as Sec 8(a)(1) of the Act However, the Board has generally found that discharge of an employee for asserting a right under a collective-bar- gaining agreement violates Sec 8(a)(1) See , e g, Wagner-Smith Co, 262 NLRB 999 (1982), City Disposal Systems, 256 NLRB 451 ( 1981), Roadway Express, supra In this case, the only difference in the remedy if a viola- tion of Sec 8(a)(3) had been found , would be the inclusion of additional language in the cease-and-desist provision of the recommended Order I therefore find it unnecessary to pass upon the issue of whether the dis- charge violated Sec 8(a)(3) as well as Sec 8(a)(1) of the Act Upon the basis of the above findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Wheeling-Pittsburgh Steel Corporation is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The United Steel Workers of America is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. By suspending and subsequently discharging em- ployee Ernest Swiger because he engaged in protected concerted activity within the meaning of Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the purposes of the Act. As I have found that Respondent unlawfully suspended and subsequently discharged Ernest Swiger, I shall recommend that Respondent be ordered to offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equiva- lent job, without prejudice to his seniority or other rights and privileges previously enjoyed. I shall further recom- mend' that Respondent be ordered to make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of the amount he normally would have earned from the date of his suspension until the date of Respondent's offer of reinstatement, less net earnings in accordance with F W. Woolworth Co., 90 NLRB 289 (1950), to which shall be added interest, to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977).29 Respondent moved at the hearing that, in the event Swiger's discharge was found to be unlawful, Respond- ent's liability for backpay be tolled as of May 17, 1982, the date on which this case was originally scheduled to be heard. I took the motion under advisement. The Board has long held, with Supreme Court approval, that delays in the processing of unfair labor cases do not result in a limitation of backpay liability,30 and Respond- ent has cited no authority for a contrary view. Accord- ingly, Respondent's motion is denied. I shall also recommend, in accordance with the Board's recent decision in Sterling Sugars, 261 NLRB 472 (1982), that Respondent be ordered to expunge from its records any reference to Swiger's unlawful discharge and to provide written notice to him of that expunction and inform him that Respondent's unlawful conduct will not be used as a basis for further personnel action con- cerning him. 29 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 80 NLRB v J H Rutter-Rex Mfg, 396 U S 258 (1969) WHEELING-PITTSBURGH STEEL On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3i ORDER The Respondent, Wheeling-Pittsburgh Steel Corpora- tion, Steubenville , Ohio, its officers , agents, successors, and assigns, shall 1. Cease and desist from (a) Suspending , discharging , or otherwise discriminat- ing against employees in regard to hire or tenure of em- ployment because they engage in protected concerted ac- tivities within the meaning of Section 7 of the Act. (b) In any like or related manner interfering with, re- straining , or coercing its employees in the exercise of their right to engage in or refrain from engaging in any or all of the activities specified in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Ernest Daniel Swiger immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or other rights and privileges previ- ously enjoyed , and make him whole for any loss of earn- ings he may have suffered as a result of Respondent's discrimination against him , in the manner set forth in the remedy section of this decision. (b) Remove from its files any reference to the suspen- sion and discharge of Ernest Daniel Swiger on February 15, 1981, and February 25, 1981, respectively, and notify him in writing that this has been done and that evidence of this unlawful suspension and discharge will not be used as a basis for future personnel actions against him. (c) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at it Steubenville, Ohio facility, copies of the attached notice marked "Appendix."32 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by Respondent 's representa- tive, shall be posted by it immediately upon receipt, and maintained for 60 consecutive days, in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply sl If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings , conclusions , and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. as 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONSBOARD An Agency of the United States Government 1395 WE WILL NOT suspend , discharge , or otherwise dis- criminate against employees in regard to hire or tenure of employment , or any term or condition of employment, because they engage in protected concerted activities under the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with , restrain , or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act to self- organization , to form, join , or assist labor organizations, to bargain collectively through representatives of their own choosing , and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activity. WE WILL offer Ernest Daniel Swiger immediate and full reinstatement to his former job or, if that job no longer exists , to a substantially equivalent job, without prejudice to his seniority or other rights or privileges previously enjoyed, .and WE WILL make him whole for any loss of earnings he may have suffered as a result of our discrimination against him , with interest. WE WILL remove from our files any references to the disciplinary suspension of Ernest Daniel Swiger on Janu- ary 15, 1981, or discharge on February 25, 1981, and WE WILL notify him that this has been done and that evi- dence of this unlawful suspension and discharge will not be used as a basis for future personnel actions against him. WHEELING-PITTSBURGH STEEL CORPORA- TION Nancy Recko, Esq., for the General Counsel. Francis P. Massco, Esq ., of Wheeling , West Virginia, for the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE MARY ELLEN R. BENARD, Administrative Law Judge. On December 28, 1982, I issued a decision in the above- entitled proceeding finding that Wheeling-Pittsburgh Steel Corporation (Respondent), had violated Section 8(a)(1) of the National Labor Relations Act by discharg- ing Charging Party Ernest Swiger. Thereafter, Respond- ent filed exceptions to that decision and a supporting brief, and the General Counsel filed exceptions. On February 23, 1984, the National Labor Relations Board issued an Order Remanding Proceeding to Ad- ministrative Law Judge, remanding the case to me for further consideration in light of the Board 's decision in Olin Corp., 268 NLRB 573 (1984). Consequently, on March 1, 1984 , I issued a notice to all parties inviting them to file supplemental briefs with respect to the issues 1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD covered by the remand order. Pursuant to that notice, Respondent and the General Counsel have filed briefs, which have been considered. 1. BACKGROUND; THE INITIAL DECISION As more fully detailed in the initial decision , Swiger was employed by .Respondent as an ore bridge operator. On February 15, 1981, employees Daniel Pavkovich, David Tressler, Brian Maguire, and Frank Marker no- ticed that while Swiger was operating the ore bridge, the back of the pier legs lifted 'off their mounts and that most of the bolts fastening the legs to the mounts were missing or severely rusted. The four men called the situation to Swiger's attention, and he consequently refused to oper- - ate the ore bridge until a union safety representative in- spected the equipment. i Because of his refusal to work on the ore bridge, Swiger was suspended and subse- quently terminated. Thereafter, his discharge was the subject of an arbitration, proceeding; the arbitrator found that the discharge was-for cause. The General Counsel contends that Swiger had a right protected by the Act to refuse to work on the ore bridge until the safety provisions of Respondent's collective-bar- gaining agreement with the Union were implemented and that his refusal to operate the equipment was based on' his good-faith belief that continuing to work on it would require him to work under abnormally dangerous conditions. Accordingly, the General Counsel argues that Swiger's discharge violated Section 8(a)(1) and (3) of the Act. Respondent contends that the Board should defer to the arbitration award and dismiss the complaint, and that even if deferral were not required, the General Counsel did not establish that Swiger's discharge violat- ed the Act. In, my original decision, I noted that the arbitrator did not discuss the question of whether Swiger's refusal to work on the ore bridge was protected by the National Labor. Relations Act, and, relying on Suburban Motor Freight, 247 NLRB 146 (1980), found, inter alia, that the burden was on Respondent, as the party seeking deferral, to establish that the statutory issue was litigated. I fur- ther found that there was no indication that the issue of whether Swiger's conduct was protected by the Act was presented to or considered by the arbitrator, on grounds that mere consideration of relevant facts did not neces- sarily show consideration of the statutory issue,2 and that the issue before the arbitrator was whether Swiger's dis- charge was prohibited by the contract, while the issue before me was whether Swiger's conduct was protected by the Act. I therefore found that deferral to the arbitra- tion award was not warranted. I further found, contrary to the arbitrator, that Re- spondent was aware at the time Swiger refused to work on the ore bridge that he wanted a union safety repre- sentative to inspect the equipment, and I also found that the arbitrator erroneously described the testimony of em- ployee Brian Maguire at the arbitration proceeding and i Respondent's production and maintenance employees, including Swiger , were represented by the United Steel Workers of America 2 Citing Professional Porter Co, 263 NLRB 136 (1982), which in turn relied on Suburban Motor Freight, supra that at least two of the other employees who were in- volved in the incident were not notified of the arbitration hearing and therefore had no opportunity to testify at it, and that the arbitrator was not made aware that after Swiger was suspended, Respondent replaced some of the bolts on the ore bridge, that the ore bridge operator on the next shift refused to operate the equipment but was not subjected to discipline, or that later that evening Re- spondent's general foreman, agreed that a crew on the next shift would do further repair work. In light of these findings, I concluded that the arbitration proceeding was not fair and regular within the meaning of Spielberg Mfg. Co., 112 NLRB 1080 (1955), and that, irrespective of whether the unfair labor practice issues were presented to or considered by the arbitrator, deferral to his award was not appropriate. II. FINDINGS AND CONCLUSIONS ON REMAND As indicated above, on January 19, 1984, the Board issued its Decision and Order in Olin Corp., 268 NLRB 573. In that decision, the Board held that: We would find that an arbitrator has adequately considered the unfair labor practice if (1) the con- tractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. In this respect, differences, if any, between the contractual and statutory stand- ards of review should be weighed by the Board as part of its determination under the Spielberg stand- ards of whether an award is "clearly repugnant" to the Act. And, with regard to the inquiry into the "clearly repugnant" standard, we would not require an arbitrator's award to be totally consistent with Board precedent. Unless the award is "palpably wrong," i.e., unless the arbitrator's decision is not susceptible to an interpretation consistent with the Act, we will defer. Finally, we would require that the party seeking to have the Board reject deferral and consider the merits of a given case show that the above stand- ards for deferral have not been met. Thus, the party seeking to have the Board ignore the determination of an arbitrator has the burden of affirmatively dem- onstrating the defects in the arbitral process or award.3 The Board further overruled Suburban Motor Freight to the extent it provided for a different allocation of the burden in deferral cases. In accord with the Board's remand, and in light of the record and both the original and supplemental briefs filed by Respondent and the General Counsel, I have recon- sidered the findings and conclusions on the deferral issue as set forth in my original decision, and make the follow- ing findings: The arbitrator's award indicates that in deciding whether there was "just cause" for Swiger's discharge, 2 268 NLRB at 574 (Footnotes omitted.) WHEELING-PITTSBURGH STEEL relevant considerations included whether Swiger had a reasonable basis for his assertion that he was afraid that the ore bridge was unsafe to operate and whether Swiger made any attempt to enforce the safety provisions of the contract. Similarly, the unfair labor practice issues turned on whether Swiger's refusal to operate the ore bridge was protected by the Act because he had a good-faith belief that operating the ore bridge required him to work under conditions which were unreasonably dangerous and/or because he had a right to cease working on the bridge until the contractual safety procedures were fol- lowed. The General Counsel concedes in her supplemen- tal brief that the unfair labor practice issues in this case may be factually parallel to the contractual issues before the arbitrator, and I find that the issues were indeed fac- tually parallel within the meaning of Olin Corp. However, I further find, in agreement with the Gener- al Counsel, that the arbitrator was not presented with the facts relevant to resolving the unfair labor practice ,issues. As discussed in my initial decision, the evidence adduced by the General Counsel before me established that three of the four employees who advised Swiger that the back leg of the ore bridge was jumping did not testify at the arbitration hearing and the arbitrator's award erroneously characterized the testimony of the fourth, Maguire. Further, Robert Coulter, the ore bridge operator on the shift following Swiger's, who insisted that a safety man inspect the bridge and who was not re- quired to run the equipment until after certain repairs were made, did not testify at the arbitration hearing and the arbitrator was apparently not made aware of the cir- cumstances under which Coulter eventually operated the ore bridge. Thus, the arbitrator did not have before him evidence which was crucial to Swiger's claim that he had a reasonable belief that the ore bridge was unsafe. In addition, the arbitrator stated in his award that Swiger "neither asked nor was he prohibited from call- ing his safety committeeman." However, the arbitrator did not state the basis for this finding and the uncontro- verted testimony by the General Counsel 's witnesses at the hearing before me was that Foreman Harry Fergu- son was aware that Swiger wanted a union safety man to look at the ore bridge before he operated it again. As discussed in my initial decision, no transcript was made of the arbitration proceeding and the arbitrator subse- quently died; there is therefore no indication that the ar- 1397 bitrator was aware of the evidence that Swiger had indeed asked for a union safety committeeman and at- tempted to enforce what he reasonably believed to be his rights under the contract. In sum, the General Counsel has demonstrated that the arbitrator did not have before him the relevant facts per- taining to the alleged unfair labor practices, and there- fore the standards set forth in Olin Corp. for deferral to the arbitrator's award have not been met.4 Accordingly, I conclude that deferral to that award is not warranted.5 The Board's remand Order did not refer to the sub- stantive issues raised in this proceeding . I therefore con- clude that the remand was limited to the issue of wheth- er deferral to the arbitration award was appropriate; having found for the reasons stated above that deferral is not warranted, I reaffirm my earlier findings and conclu- sions with respect to the merits of the case. Pursuant to the Board's Order on remand, I hereby issue the following recommendede ORDER The Respondent, Wheeling-Pittsburgh Steel Corpora- tion, Steubenville, Ohio, its officers, agents, successors, and assigns , shall take the action set forth in the recom- mended Order in the decision-issued in this case by me on December 28, 1982. 4 In this regard I note that the majority in Olin emphasized that it was not returning to the rule established in Electronic Reproduction Service, 214 NLRB 758 (1974), that deferral is warranted if there was an "oppor- tunity" to present the unfair labor practice issue to the arbitrator. 268 NLRB 573 at fn. 10. 5 As noted above, in the initial decision I further found that inasmuch as important evidence was not presented to the arbitrator and in view of his erroneous findings concerning Maguire's testimony , the arbitration proceeding was not fair and regular within the meaning of Spielberg. I adhere to that finding. 6 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations , the findings, conclusions , and recommended Order shall , as provided in Sec 102.48 of the Rules, be adopted by, the Board and all objections to them shall be deemed waived for all pur- poses.