Goodwin v. N.L.R.B., 91-70216

Decision Date08 May 1992
Docket NumberNo. 91-70216,91-70216
Citation979 F.2d 854
PartiesNOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Tyrone GOODWIN, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Before JAMES R. BROWNING and FARRIS, Circuit Judges, and GEORGE **, District Judge.

Tyrone Goodwin appeals the National Labor Relations Board's ("the Board") decision dismissing his unfair labor practice complaint. Goodwin claimed his discharge violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("the Act"), 29 U.S.C. §§ 158(a)(1), (3). The Board deferred to an arbitration award which found that Goodwin had been discharged for cause. We have jurisdiction under 29 U.S.C. § 160(f). We affirm.

FACTS

Goodwin worked in the composites department of Teledyne Industries, Inc ("Teledyne"). He was also an area shop steward for United Automobile, Aerospace and Agricultural Implement Workers of America ("the Union"). He began to have attendance and other disciplinary problems in 1985. On September 5, 1986, he promised in writing on a Performance Correction Notice that he would have no unexcused absences for attendance. On March 6, 1987, Goodwin received another Performance Correction Notice for Excessive Attendance Discrepancies. He was written up by a supervisor in early 1988 for violations of quality and quantity of work rules.

In March of 1988, Goodwin was discharged after grabbing and shoving a supervisor. He was reinstated without backpay in May, pursuant to a grievance settlement. He signed a "Statement of Commitment" promising to have excellent attendance, to remain at his work station, to produce a quality product, and to follow management direction in performing his duties. Goodwin agreed that his failure to fulfill these commitments could result in the severance of his employment. Subsequently, however, he continued to leave his work area without permission, and received several warnings for this and for not working.

On July 18, 1988, Goodwin's supervisor, Brad Zachau, noticed Goodwin away from his work area talking to James Jones, another steward, and started timing the conversation. After 10 minutes, Zachau decided to give Goodwin a warning for being away from his work area without permission. Zachau convened a disciplinary meeting attended by Goodwin, Jones, Zachau, and manager Mike Yavno. Goodwin was told that he was being given a warning for violating the work rule prohibiting employees from "neglecting duty, loitering, wasting time, [and] being away from work station without authorization." Goodwin and Jones claimed that they were discussing union business, and that Jones had initiated the conversation, but Zachau would permit no explanation. Goodwin repeatedly called Zachau a liar during the meeting.

When Zachau handed Goodwin a written copy of the warning, Goodwin said "This is what I think of the warning," and tore it in half. Then he said "And this is what I think of you, Brad," tore it in quarters, balled up the torn paper, and tossed it across the table toward Zachau. Zachau caught the paper and asked Yavno if that was "insubordination," and Yavno replied that it was. Zachau then told Goodwin he was being suspended. Teledyne converted the suspension into a discharge several days later, based on the insubordinate acts which occurred in the conference room.

Goodwin filed a grievance, and the matter went to arbitration with the stipulation that the arbitrator was to consider whether the discharge was for just cause and, if not, what was the proper remedy. In his November 23, 1988 decision, the arbitrator concluded that Goodwin's insubordination, combined with his conduct and work habits, violated the Reinstatement Agreement. The arbitrator found that Teledyne's actions were reasonable and should be sustained.

Meanwhile, on October 7, 1988, Goodwin also filed an unfair labor practice charge with the Board, alleging violations of Section 8(a)(1) and (3) of the Act. The Board administratively deferred addressing Goodwin's charge, pending the outcome of his grievance. After reviewing the arbitrator's decision, however, the Board's Regional Director stated she believed that the arbitrator had not addressed the issues raised in Section 7 of the Act, 29 U.S.C. § 157. The administrative deferral was revoked and a complaint issued.

This prompted Teledyne to request clarification from the arbitrator on two issues: 1) if he had considered whether the conduct for which Goodwin was discharged was protected by Section 7 of the Act, and 2) whether the conduct for which Goodwin was discharged was protected by Section 7 of the Act. On March 6, 1989, the arbitrator issued a "Clarification of Arbitration Opinion." In response to the first question, the arbitrator said:

"I was aware that a charge had either been filed or would be filed by the Grievant with the NLRB related to protected activity. While I was not presented specifically with an issue dealing with the NLRA, I was aware of a claim that the Grievant, as a Union Steward, might have been engaged in Union activity sometime the day of his discharge, specifically the morning prior to the behavior that actually resulted in his discharge."

With respect to the question of whether the conduct Goodwin was discharged for was protected by the Act, the arbitrator said:

".... No. Mr. Goodwin was discharged for his behavior in the conference room in refusing to accept the Verbal Warning, being insubordinate to his superior/manager by his physical and verbal reaction.... I concluded that Mr. Goodwin was not engaged in appropriate union activity on the morning in question, justifying mitigation of the charges.... No reason for mitigation presented by the Union/Grievant was sufficient to overturn the discharge action. Considering all of the circumstances, the management decision to terminate was reasonable."

The complaint was heard on June 21, 1989, before an ALJ, who concluded that Goodwin's discharge violated sections 8(a)(1) and (3) of the Act.

Teledyne filed exceptions, and a three-member panel of the Board dismissed the complaint. The panel declined to affirm the ALJ's decision, choosing instead to defer to the arbitrator's award because it "satisfies the requirements of Olin " and because the General Counsel failed to "satisfy his burden of proof that deferral is unwarranted."

We review the Board's decision to defer to an arbitration award for an abuse of discretion. Garcia v. NLRB, 785 F.2d 807, 809 (9th Cir.1986). The Board abuses its discretion if it "clearly departs from its own standards or the standards themselves are invalid." Id.

DISCUSSION

The Board has "broad discretion to respect an arbitration award if to do so serves the fundamental purposes of the Act." Garcia, 785 F.2d at 809; Servair, Inc. v. NLRB, 726 F.2d 1435, 1438 (9th Cir.1984).

The Board must balance two competing, equally important statutory objectives in making deferral decisions. One is to "promote industrial stability by encouraging the private resolution of labor disputes through an arbitration process agreed upon by the parties." Id. 1 The other is the Board's "statutory obligation to protect employees in the exercise of protected Section 7 rights by preventing unfair labor practices." Id. 2

To assist in accommodating these objectives, the Board has established standards to follow in making its determination whether to defer to an existing arbitration award. The current standards favor deferral if: 1) the arbitration proceedings were fair and regular; 2) the parties agreed to be bound; 3) the decision was not "clearly repugnant to the purposes and policies of the Act;" Spielberg Manufacturing Company, 112 N.L.R.B. 1080, 1082 (1955); 4) "the contractual issue is factually parallel to the unfair labor practice issue"; and 5) "the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice." Olin Corporation, 268 N.L.R.B. 573, 574 (1984).

With respect to the "clearly repugnant" standard, the Board will defer "unless the arbitrator's decision is not susceptible to an interpretation consistent with the Act." Id. The burden is on the party seeking rejection of deferral to show that the deferral standards have not been met. Id.

The parties do not dispute that the arbitration proceedings appeared to be fair and regular and the parties agreed to be bound.

Goodwin argues that the first Olin deferral requirement--"the contractual issue is factually parallel to the unfair labor practice issue"--was not satisfied in his case. He claims that the facts relevant to the contractual issue were: 1) the reinstatement agreement, 2) the prior warnings, and 3) the quality and quantity of his work. Goodwin argues that the contractual facts are distinct from the facts relevant to the statutory issue, i.e., the tool crib conversation dealt with union business and was initiated by Jones. Thus, according to Goodwin, the statutory issue of whether he was disciplined for union activities is not factually parallel to the contractual issue of whether he had violated his reinstatement agreement. Goodwin's argument fails because the contractual and statutory facts in his case are inextricably intertwined, as indicated in the Board's findings.

The Board found that, in order to determine whether Goodwin was discharged for cause, the arbitrator had to consider whether the July 18 warning was proper, and whether Goodwin's insubordinate conduct in the conference room warranted his discharge.

The Board found the arbitrator reached the following factual conclusions in determining the warning to be proper: 1) Teledyne's "closer scrutiny" of Goodwin's actions on July 18 was "justified by his...

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