Ad Art, Inc. v. N.L.R.B.
| Decision Date | 30 January 1981 |
| Docket Number | No. 78-3371,78-3371 |
| Citation | 645 F.2d 669 |
| Parties | 106 L.R.R.M. (BNA) 2010, 107 L.R.R.M. (BNA) 3292, 90 Lab.Cas. P 12,467 AD ART, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Archie G. Parker, Rowland & Parker, Sacramento, Cal., for petitioner.
J. Keith Gorham, Washington, D.C., for respondent.
On Petition for Review and Cross-Application For Enforcement of an Order of the National Labor Relations Board.
Before THORNBERRY, * ANDERSON and SKOPIL, Circuit Judges.
Ad Art, Inc. (Ad Art) petitions for review of a decision of the National Labor Relations Board (NLRB), 238 NLRB 159 (1978). The Board cross-applies for enforcement of its order.
This controversy arose when Ad Art discharged one of its employees. The union grieved the discharge under the collective bargaining agreement and pursued it through arbitration. An arbitrator found that the discharge was "just and lawful" under the collective bargaining agreement. The NLRB refused to defer to the arbitrator's decision. The Board found that Ad Art violated section 8(a)(1), 29 U.S.C. § 158(a)(1), by discharging the employee for exercising protected rights.
Ad Art argues that the Board abused its discretion in refusing to defer to the arbitral award. It further argues that if the refusal was proper, the Board failed to find an unlawful motivation for the discharge.
We enforce the Board's order.
The facts are complex but largely undisputed. Ad Art manufactures and services electric signs in California and Nevada. James Wydner was employed by Ad Art for fifteen years prior to his discharge in December 1976. The events culminating in his discharge covered several years, but for purposes of this review, we need only examine selected events.
In April 1976, after the expiration of a bargaining agreement, Ad Art and the International Brotherhood of Electrical Workers, Local Union No. 591 (union) engaged in intense bargaining. For the first time, the proposed agreement included provisions for seniority, job posting, paid holidays, vacations, sick leave and discharge only for just cause. When negotiations failed, the union engaged in a five-week strike.
Wydner vocally objected to a company offer to settle the labor dispute. The union membership, however, voted to accept the agreement and commence work. Wydner failed to return to work the first day. Ad Art considered his absence to be a "voluntary termination" but offered to listen to excuses and to consider re-employing him. Four other employees were similarly treated.
Wydner and the other four refused to meet with Ad Art President Lou Papais until a representative of the union was present. Papais ordered the five to leave the plant. Late that afternoon, they were called back and reinstated. The following day, Wydner was demoted a grade but his pay did not change. Shortly thereafter, the five employees filed a grievance requesting pay for the day they were ordered off the plant. Papais denied the grievance and reduced Wydner's pay to reflect the lower grade. Wydner filed a grievance over this pay reduction. The one-day pay grievance was eventually settled when Ad Art agreed to pay the employees the equivalent of six hours work. Eventually, Wydner's wage rate grievance was settled when Ad Art offered to promote him and raise his pay. 1
In June 1976, Ad Art requested that employees work overtime. Wydner inquired whether the contract provided for mandatory overtime. Ad Art responded that overtime was not mandatory but insisted on voluntary compliance. Wydner worked overtime but only after the company indicated In July 1976, Wydner requested a meeting with Papais to discuss working conditions, grievances, and alleged harassment. Papais declined to meet with him and directed Wydner to submit complaints through a union steward. Papais took the opportunity to reprimand Wydner for his past activities of "improperly acting in the capacity of a steward", "meddling", and being "involved in matters that are none of (his) business."
that disciplinary action would be initiated if he refused.
During the summer, Wydner was involved in two incidents of poor workmanship. He failed to equip fully a sign before it was shipped out. He also failed to finish welding one sign because of a work-related injury. Wydner left the sign in the paint aisle. The sign was painted and sent to a customer where it eventually fell apart. Wydner refused to repair the sign on his own time. He was discharged but immediately rehired.
Wydner filed several more grievances through the union steward. Ad Art posted a notice in the plant notifying employees that the union was the recognized bargaining agent and direct bargaining negotiations with Ad Art were prohibited. Wydner complained that the union steward failed to file one of his grievances. The union representative began processing Wydner's grievances.
In November 1976, Wydner suffered a job-related injury and was unable to work the following day. Ad Art issued a written reprimand when Wydner did not work or call the company. Wydner filed a grievance over the reprimand.
In December 1976, a power outage occurred in the plant. A supervisor told some of the employees that "(a)s far as I'm concerned, if you don't want to work you can punch out and go home". Wydner was the only employee to leave. Power was restored later the same day. Ad Art refused to pay Wydner a full wage for that day. Wydner filed a grievance. It was written by a union steward and filed by the union. Papais denied the grievance but forgot to sign his reply. Wydner pointed this out to a steward who spoke with an Ad Art supervisor. They concluded that a signature was not required and told Wydner. Wydner took the reply and said that he would take care of it.
Wydner went to the office area and asked for Papais. The plant superintendent replied that he did not know where Papais was and shrugged when Wydner asked if Papais was in a particular office. Wydner proceeded into that office, interrupted a meeting, and asked Papais to sign the reply. Papais signed the reply. Wydner then commented, "I thought we were going to work these things out." Papais requested Wydner to leave.
The following day, December 23, 1976, Papais terminated Wydner's employment with Ad Art. In the termination notice, Papais recounted the events of the preceding day and interpreted Wydner's remark as an "implied threat" that was "just another example of (Wydner's) poor attitude and the negative effect it has on the other workers." Papais also reviewed the power outage grievance and mentioned several other grievances, some of which had long been settled. Papais stressed Wydner's persistence in seeking his own solutions to complaints and doing so on company time. The letter concluded that Wydner's "continued actions and activities prove that (he was) not the productive worker that the company is entitled to expect and that (he was) more interested in making trouble ...."
Shortly thereafter, Wydner filed a grievance charging that he was terminated for unjust reasons. He also filed an unfair labor practice charge with the NLRB. The union pursued the grievance to arbitration. The unfair labor charge was withdrawn "without prejudice" pending the arbitration.
On May 24, 1977 the arbitration hearing was conducted. Several days later, to avoid a six-month filing limitation, Wydner refiled the unfair labor practice charge with the NLRB. On July 12, the arbitral decision was released. The arbitrator found The Administrative Law Judge (ALJ), after reviewing the arbitrator's decision, recommended that the NLRB refuse to defer to the arbitral decision. The ALJ stated that it was not sufficient for the arbitrator to deal merely with the question of whether or not the discharge was proper under the contract. He found that the arbitrator did not have before him and did not decide the statutory basis for an unfair labor practice. The ALJ concluded that although Wydner displayed a bad attitude and often confronted management over trivial matters, Ad Art violated section 8(a)(1) by discharging Wydner for exercising his section 7 right to engage in the concerted protected activity of filing grievances. The ALJ found, however, that Ad Art did not violate section 8(a) (4) and found it unnecessary to determine if a section 8(a)(3) violation occurred.
that Ad Art had "just cause" to dismiss Wydner. Specifically, the arbitrator found that when Wydner interrupted the meeting he was "in effect acting like a steward although he was warned on more than one occasion not to do so." The arbitrator determined that Ad Art had the authority under the bargaining agreement to direct the work force and to discharge employees for "just and lawful cause." Although Wydner had performed his job satisfactorily for many years, he did not have the right to "disregard reasonable Company rules which he did on numerous occasions".
The Board, with one member dissenting, adopted the ALJ's recommendation not to defer to the arbitral award. The Board also adopted the findings of the ALJ and the conclusion that Ad Art committed an unfair labor practice by discharging Wydner. The Board's proposed order instructed Ad Art to cease and desist from discharging employees who exercise protected rights, offer Wydner full reinstatement without prejudice to seniority, pay back wages for the time he lost and post appropriate notices.
1. Did the NLRB abuse its discretion by refusing to defer to the arbitrator's decision?
2. If the Board's deferral decision was not an abuse of discretion, is there substantial evidence in the record to support the Board conclusion that Wydner was unlawfully discharged?
This circuit recently addressed the "troublesome issue of whether, and under what...
To continue reading
Request your trial
-
Int'l Longshore & Warehouse Union v. ICTSI Or., Inc.
...with statutory authority under section 10(a), 29 U.S.C. § 160(a), to adjudicate and remedy unfair labor practices.” Ad Art, Inc. v. N.L.R.B., 645 F.2d 669, 674 (9th Cir.1980). To remedy an unfair labor practice, the NLRB may issue “an order requiring such person to cease and desist from suc......
-
Pemberton v. Bethlehem Steel Corp.
...of retaliation for filing a grievance or otherwise engaging in protected activity constitutes a violation of § 8 ( Ad Art, Inc. v. NLRB, 645 F.2d 669 (9th Cir.1981); N.L.R.B. v. Lucy Ellen Candy Div. of F & F Lab., Inc., 517 F.2d 551 (7th Cir.1975)), as does the placing of employees and uni......
-
Holmes v. Tenderloin Hous. Clinic Inc.
...are protected, concerted activity under § 7 of the Act. See, e.g., Ad Art Incorporated, 238 NLRB 1124 (1978), enf'd Ad Art Inc. v. N.L.R.B., 645 F.2d 669 (9th Cir.1980); Shell Oil Company, 226 NLRB 1193 (1976), enf'd Shell Oil Company v. NLRB, 561 F.2d 1196 (5th Cir.1977). SEIU argues that ......
-
Royal Development Co., Ltd. v. N.L.R.B.
...(emphasis added). We have followed this test repeatedly since our decision in Western Exterminator. See, e.g., Ad Art, Inc. v. NLRB, 645 F.2d 669, 678 (9th Cir.1981) (Ad Art ); NLRB v. Anchorage Times Publishing Co., 637 F.2d 1359, 1366-67 (9th Cir.), cert. denied, 454 U.S. 835, 102 S.Ct. 1......