Hammermill Paper Company v. National Labor Relations Board

ADAMS, Circuit Judge,

dissenting.

I respectfully dissent.

It is conceded that on the night of February 18, 1979, nine employees of the Hammermill Paper Company improperly refused to proceed with an operation that would have permitted the production at the plant to go forward. There is no doubt, either, that there was no real safety concern motivating the actions of the employees. As a result of the costly and unjustified interruption in production, Hammermill imposed discipline on the employees: It discharged six of the employees who had received a previous warning, and suspended for two weeks the employees who had a “clean” record. As for Thomas Stritzinger, who was a union steward in the plant, but not on the operation in question, it imposed a discharge penalty. Stritzinger also had a “clean” record.

All the employees who were discharged, including Stritzinger, filed a grievance, and the matter was assigned to an arbitrator. After hearing the witnesses and carefully reviewing the record, the arbitrator stated:

We are left then with the matter of the appropriate penalties. I believe that the evidence justifies the finding that the men acted in an egregiously improper manner, that they refused to perform work tasks assigned to them, that whatever their concern for safety, it was at best premature, that they should have proceeded to do the tasks assigned to them. The simple reasons for their compliance rests on the needs of industrial production upon which their well-being and continued livelihood depends. The needs of ordinary production requires that supervision must be given the authority to make assignments. If there had come a time when safety hazards were involved, there would have been ample time for them to make their stand and to refuse to do the work assigned to them on the grounds of safety. Their failure to perform work was the type of conduct that deserves disciplinary action but in light of the total situation it does not deserve discharge.

... In this case, I feel that to award backpay to these employees would be interpreted as a reward for their activity on the night in question. It was not conduct which ought to be rewarded. It was conduct that ought to be condemned in the most stringent of terms. Their return to work is based, in part, on the procedural defects in the method used to discharge them, and in part on the fact that the disparity meted out to the employees involved is just too great and not justified by their prior records. Accordingly, in light of all the testimony and evidence, the conclusion will be that the seven employees should be returned to work without backpay... .

Despite these determinations by the arbitrator, an expert in dealing with employer-employee matters, the NLRB filed an unfair labor charge against Hammermill, on the ground that not to give Stritzinger five months backpay would constitute a violation of 8(a)(3).

Although Stritzinger had already been reinstated as an employee of Hammermill in accordance with the arbitrator’s award, the ALJ declared that the “case should not be dismissed in deference to the Arbitrator’s decision, because the failure to compensate Stritzinger is contrary to Board law.” The ALJ ordered that Hammermill pay five months backpay to Stritzinger. The National Labor Relations Board affirmed the ALJ, and filed a petition seeking enforcement of the backpay order.

In Spielberg Manufacturing Co., 112 N.L. R.B. 1080 (1955), the Board set forth its standards for deferring to arbitrators’ awards. It stated that it would defer to an arbitrator’s award if: (1) the proceedings have been fair and regular; (2) the parties agreed to be bound; and (3) the decision was not “clearly repugnant” to the purposes and policies of the Act. Spielberg, 112 N.L. R.B. at 1082.

There is no question that the proceedings before the arbitrator here were “fair and regular” and that the parties to the arbitration “agreed to be bound.” The principle question is whether the decision of the arbitrator in declining to awarding backpay to Stritzinger was “clearly repugnant” to the purposes and policies of the Act. Since there is a clear finding that Stritzinger acted “in an egregiously improper manner” in refusing to perform work tasks assigned to him, I believe that the decision of the arbitrator in declining to pay Stritzinger five months wages for the time he was not working is not “clearly repugnant” to the Act. The Act itself does not require any backpay. Section 10(e). And certainly a decision not to pay backpay to one who has been laid-off after participating in a blatant interruption with production is not inconsistent with the purposes and policies of the Act.

As explained in International Harvester Co., 138 N.L.R.B. 923 (1962), the source of the Board’s deferral policy is rooted in both congressional and Supreme Court pronouncements:

If complete effectuation of the Federal policy is to be achieved, we firmly believe that the Board, which is entrusted with the administration of one of the many facets of national labor policy, should give hospitable acceptance to the arbitral process as “part and parcel of the collective bargaining process itself,” and voluntarily withhold its undoubted authority to adjudicate alleged unfair labor practice charges involving the same subject matter, unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act.

Id. at 926-27 (footnote omitted).

As this Court declared in N.L.R.B. v. Pincus Bros., Inc.-Maxwell, 620 F.2d 367 (3d Cir. 1980):

Based on the Board’s Spielberg doctrine, congressional action, and judicial decisions of the Supreme Court as well as this circuit, we conclude that it is an abuse of discretion for the Board to refuse to defer to an arbitration award where the findings of the arbitrator may arguably be characterized as not inconsistent with Board policy. In other words, “[i]f the reasoning behind an award is susceptible to two interpretations, one permissible and one impermissible, it is simply not true that the award was ‘clearly repugnant’ to the Act.” Douglas Aircraft Co. v. NLRB, 609 F.2d 352, 354 (9th Cir. 1979).

620 F.2d at 374.

Since it is clear to me that the reasoning behind the arbitrator’s award is susceptible to the interpretation that his decision not to grant backpay was a judgment by him that it would not be salutary to reward monetarily an employee who had “egregiously” interfered with production, I believe the Board should have deferred to that decision.¹

Accordingly, I would not enforce the Board’s order in this respect.

1 . The only decision by the employer that was the subject of the proceeding before the NLRB was the discharge of Stritzinger when other employees with “clean” records were merely suspended. The employer did not order a discrete penalty of no backpay for Stritzinger, it simply discharged him. Since Stritzinger was reinstated before the NLRB proceeding, it is clear that it is the arbitrator’s decision that Stritzinger not receive backpay that is the target of the Board’s order. Since the arbitrator’s decision is not, itself, an unfair labor practice, this would be an additional reason why the Board should have deferred to it.