Harberson v. N.L.R.B.
Decision Date | 04 February 1987 |
Docket Number | No. 84-2488,84-2488 |
Citation | 810 F.2d 977 |
Parties | 125 L.R.R.M. (BNA) 2667, 105 Lab.Cas. P 12,195 Thomas R. HARBERSON and Bill Talley, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Hilton Hotels Corporation, d/b/a the Denver Hilton Hotel, Intervenor. |
Court | U.S. Court of Appeals — Tenth Circuit |
Paul Alan Levy (Alan B. Morrison, of Public Citizen Litigation Group, Washington, D.C., with him on the briefs), Public Citizen Litigation Group, Washington, D.C., for petitioners.
Judith A. Dowd (Rosemary M. Collyer, General Counsel; John E. Higgins, Jr., Deputy General Counsel; Robert E. Allen, Associate General Counsel; and Elliott Moore, Deputy Associate General Counsel, N.L.R.B., Washington, D.C., with her on the brief), N.L.R.B., for respondent.
Before LOGAN, TACHA and BALDOCK, Circuit Judges.
In this case we review an order of the National Labor Relations Board (Board) in which the Board deferred to the decision of an arbitration panel in dismissing an unfair labor practice complaint against Hilton Hotels Corporation (Hilton). This case arises under the National Labor Relations Act, 29 U.S.C. Secs. 151-169 (the Act). This court has jurisdiction over the case because the events in question occurred in Denver, Colorado. 29 U.S.C. Sec. 160(f). The circumstances of this case raised both contract and unfair labor practice questions. The contract issue was resolved through arbitration. A hearing on the unfair labor practice issue was held before an Administrative Law Judge (ALJ) in which the ALJ rejected the argument that he should defer to the decision of the arbitrators on the contract claim. The Board concluded that the ALJ should have deferred to the arbitrators' decision. Hilton Hotels Corp., 272 N.L.R.B. 488 (1984). We find that the Board has failed to provide adequate reasons for its decision, and we therefore remand for further consideration by the Board.
Hilton operates a large convention hotel in Denver, Colorado. 1 Most of Hilton's Denver employees are represented by the Hotel Employees and Restaurant Employees International Union in basic housekeeping, culinary and related job classifications. Hilton's engineers, carpenters, plumbers, painters and maintenance workers are represented by the International Union of Operating Engineers (IUOE). Its five electricians are represented by the International Brotherhood of Electrical Workers (IBEW). All three unions have collective bargaining agreements with Hilton. At the time of the events in question, Thomas Harberson and Bill Talley were members of the IBEW and worked as electricians in the maintenance department. Harberson's duties included electrical repair work, relamping, and running the control room. Talley was primarily engaged in repairing television sets, performing electrical maintenance work, and operating the control room amplifier and spot lights.
On July 1, 1982, the IUOE commenced an economic strike against Hilton. Some Hilton employees who were members of the other two unions, including Harberson and Talley, honored the IUOE picket line. Hilton continued its operations by relying upon its nonunion employees and by bringing in additional personnel from other facilities. On about July 6, Hilton began interviewing replacement job applicants for the maintenance department. Mike Bozic was hired on July 6 and began working for Hilton the next day. Tim Jude was hired on July 8 and began working for Hilton the same day. Bozic and Jude performed some general electrical maintenance work during the remainder of the strike.
On July 12, Hilton and the IUOE reached a strike settlement agreement which provided that all of the striking IUOE employees would be reinstated immediately. On the morning of July 13, Harberson and Talley reported to their supervisor, Robert Langdon. Langdon told the two employees that no work had been scheduled for either of them that day. He subsequently referred them to the personnel office where they were told that they had been permanently replaced during the strike. On July 14, Hilton sent letters to Harberson and Talley informing them that, although work was unavailable at that time because they had been permanently replaced, their names had been placed on a preferential reinstatement list and they would be recalled as soon as positions for which they were qualified became available.
These events raised questions under the Act and under the contract between Hilton and the IBEW. Under Sec. 7 of the Act, 29 U.S.C. Sec. 157, employees have the right to engage in concerted activities including strikes (unless such activity is proscribed, for example, by a no-strike clause in a collective bargaining agreement). Section 8(a)(3) of the Act, 29 U.S.C. Sec. 158(a)(3), forbids discrimination to discourage the exercise of the right to engage in concerted activities. Under the Act, an employer may not discharge striking employees. However, an employer may permanently replace employees engaged in a protected strike in order to continue operations. NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 910-11, 82 L.Ed. 1381 (1938). If an employer hires permanent replacements during an economic strike, striking workers are entitled only to preferential reinstatement as positions become available. See id. at 345-47, 58 S.Ct. at 910-11. If the employer does not hire permanent replacements during the strike, it must reinstate strikers as soon as they make an unconditional offer to return to work.
The collective bargaining agreement between Hilton and the IBEW provides that employees will not be "disciplined or discharged for refusal to cross a legally approved picket line...." Harberson and Talley were thus engaged in a protected activity when they honored the IUOE picket line. Therefore, under the Act, Hilton had the right to replace but not discharge them; if Hilton did not permanently replace them before the strike ended, Hilton potentially violated the Act by refusing to reinstate Harberson and Talley.
The events involving Harberson and Talley also presented a question under the contract between Hilton and the IBEW. The IBEW took the position that because the contract forbids "discipline or discharge" of sympathy strikers, Hilton had waived its right to permanently replace such employees. The IBEW argued that whether Harberson and Talley were permanently replaced does not matter because permanent replacement constitutes "discharge or discipline" which is forbidden under the contract, and therefore Harberson and Talley must be reinstated. Hilton argued that the contract allows it to permanently replace striking employees.
The IBEW filed contractual grievances on behalf of Harberson and Talley. Hilton denied the grievances and they were taken to arbitration before a three-member board of arbitration. The parties stipulated that the issue before the arbitrators was whether Harberson and Talley had been discharged in violation of the collective bargaining agreement. At the arbitration hearing, Hilton denied that it had discharged Harberson and Talley, and contended instead that it had lawfully replaced them and had a right to do so under the contract. The IBEW argued that Hilton's refusal to reinstate Harberson and Talley constituted discharge and is therefore prohibited under the contract.
The arbitrators first addressed the issue of whether Harberson and Talley had been discharged or whether they had been permanently replaced. At the hearing, Hilton's personnel director testified that Harberson and Talley continued to receive insurance and pension benefits and that their names had been placed on a preferential hiring list. The IBEW presented no evidence on the issue of whether the two employees had been discharged or permanently replaced. 2 The arbitrators concluded from Hilton's letters to Harberson and Talley and the testimony of Hilton's personnel director that Harberson and Talley had not been discharged. The arbitrators did not make an explicit finding that Harberson and Talley had been permanently replaced; rather they assumed that the employees had been permanently replaced on the basis of Hilton's unrebutted evidence and as a direct corollary to the finding of no discharge.
The arbitrators then addressed the issue of whether Hilton had a right to permanently replace Harberson and Talley under the terms of the collective bargaining agreement. The arbitrators concluded that Harberson and Talley could not lawfully be discharged but that they could lawfully be permanently replaced under the contract. Accordingly, the arbitrator denied Harberson's and Talley's grievances, as presented by the IBEW, over Hilton's refusal to reinstate them.
In addition to the contractual grievances that IBEW filed on behalf of Harberson and Talley, the IBEW also filed an unfair labor practice claim with the Board's Regional Office. 3 After the arbitrators rendered their decision, Harberson personally filed an unfair labor practice charge. Harberson's claim was consolidated with the earlier claim filed by the IBEW and the Regional Director ordered a hearing before an Administrative Law Judge (ALJ).
At the hearing, Hilton contended that the Board should defer to the arbitrators' finding that Hilton had lawfully replaced Harberson and Talley. The ALJ, however, proceeded with a hearing on the merits of the unfair labor practice charge. At the hearing, both parties presented evidence on the issue of whether Harberson and Talley had been permanently replaced. On the basis of testimony of witnesses and numerous exhibits, the ALJ found that Bozic and Jude had been hired not as electrical workers but as maintenance workers, they had been given no expectation that their jobs would be permanent, and Hilton's records were altered after the fact to reflect otherwise. Hilton Hotels Corp., 272 N.L.R.B. at 491 (decision of ALJ). The ALJ concluded that Hilton had not permanently replaced Harberson and...
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