N.L.R.B. v. South Cent. Bell Telephone Co.

• Decision Date: 04 October 1982
• Docket Number: No. 81-4159,81-4159
• Parties: 111 L.R.R.M. (BNA) 2609, 95 Lab.Cas. P 13,803 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 345

688 F.2d 345

111 L.R.R.M. (BNA) 2609, 95 Lab.Cas. P 13,803

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Respondent.

No. 81-4159.

United States Court of Appeals Fifth Circuit.

Oct. 4, 1982.

Rehearing Denied Nov. 2, 1982.

Elliott Moore, Deputy Assoc. Gen. Counsel, N. L. R. B., Candace M. Carroll, John E. Higgins, Jr., Robert G. Sewell, Washington, D. C., for petitioner.

John C. Carey, Jr., Birmingham, Ala., Robert Sutherland, Robert K. McCalla, Steven Hymowitz, New Orleans, La., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board.

Before BROWN, GEE, and GARWOOD, Circuit Judges.

GEE, Circuit Judge:

The National Labor Relations Board ("Board") petitions us for enforcement of its order of January 14, 1981, against South Central Bell Telephone Company ("Bell"), 254 N.L.R.B. 315 (1981). That order held Bell in violation of section 8(a)(1) and (3) of the National Labor Relations Act ("Act"), 29 U.S.C. § 158(a)(1) and (3) (1976), for singling out union stewards for longer suspensions when punishing some of its employees for participation in a strike that transgressed a contractual no-strike clause. We enforce.

I. FACTS AND DISPOSITION BELOW.

The facts in this case are undisputed. Bell, one of the 19 companies associated with American Telephone & Telegraph, provides telecommunications services to five southern states, Alabama, Kentucky, Louisiana, Mississippi, and Tennessee. Bell and the Communication Workers of America, AFL-CIO ("Union") were parties to a collective bargaining agreement ("contract") in force from August 7, 1977, through August 9, 1980. That contract covered, inter alia, employees working at Bell's Hammond, Louisiana, facility and declared in pertinent part Article 21

ADJUSTMENT OF GRIEVANCES

....

21.05 A. As the parties have agreed on procedures for handling complaints and grievances, they further agree that there will be no lockouts or strikes during the life of this Agreement.

....

Article 28

RESPONSIBLE UNION-COMPANY RELATIONSHIP

28.01 The Company and the Union recognize that it is in the best interests of both parties, the employees and the public that all dealings between them continue to be characterized by mutual responsibility and respect. To insure that this relationship continues and improves, the Company and the Union and their respective representatives at all levels will apply the terms of this Contract fairly in accord with its intent and meaning and consistent with the Union's status as exclusive bargaining representative of all employees in the unit. Each party shall bring to the attention of all employees in the unit, including new hires, their purpose to conduct themselves in a spirit of responsibility and respect and of the measures they have agreed upon to insure adherence to this purpose.

On July 31, 1979, 21 of 23 unit employees who were scheduled to report to work at the Hammond facility called in sick. On August 1, 1979, 19 of 23 employees who were scheduled to work at the Hammond facility again called in sick. Bell believed that these employees were engaged in an unprotected strike in violation of article 21.05A. Therefore, Bell gave two-day suspensions to all employees who were absent only on July 31, four-day suspensions to all employees who were absent on both July 31 and August 1, and additional five-day suspensions to five union stewards who had been absent on one or both of those days. Thus, Union stewards George Blades, Mike Jenkins, Ronny Neal, and Gary Stanga each received nine-day suspensions, and Union steward Sidney Alexander received a seven-day suspension. The suspension notices given to all rank-and-file employees stated: "(Name of employee) was suspended for (number) days from (date) to (date) for his participation in an unauthorized walkout. He is advised that further occurrences of this nature will result in discharge, barring unusual mitigating circumstances." The suspension notices given to all five union stewards contained the above language, with an additional sentence stating: "The fact that (name of employee) is a union representative was taken into account in determining the length of the suspension."

In 1972, at its Columbia, Tennessee, facility, Bell had disciplined union stewards who violated a no-strike clause identical to article 21.05A in a prior contract more severely than employees who held no union office. That differential treatment was grieved as unfair and discriminatory. Because the Union and Bell could not resolve the grievance, they submitted it to an arbitrator. In 1974, the arbitrator upheld the punishment, declaring "that because of their official positions (the union stewards) had a higher degree of responsibility and a more severe punishment is appropriate." When the contract was renewed in 1977, article 21.05A was not changed, and the arbitrator's ruling was not specifically repudiated in the new contract.

After Bell's decision in this case, the Union filed unfair labor practice charges with the Board's general counsel, who issued a complaint alleging section 8(a)(1) and (3) violations. The parties waived a hearing before an administrative law judge and submitted the case to a three-member Board panel on stipulated facts. The panel acknowledged the 1974 arbitration decision but did not defer to it. It found no evidence that the stewards engaged in any activities different from those of the employees who did not hold Union office, such as urging support of the stoppage or inducing participation in it. The stewards had "merely participated" in the unauthorized strike. The panel thus concluded that the differential treatment was based solely on the stewards' Union status, a violation of section 8(a)(1) and (3) of the Act. It ordered Bell to cease and desist from such practices, to rescind the excess suspensions, and to make the stewards whole for lost wages and benefits. 254 N.L.R.B. at 316-17.

The Board seeks enforcement of that order. This case presents two issues. First, should the Board have deferred to the 1974 arbitration decision? Second, was the differential treatment of the stewards a violation of section 8(a)(1) and (3) of the Act?

II. THE 1974 ARBITRATION DECISION

Bell contends that the 1974 decision is an integral and binding part of the 1977 contract to which this court and the Board must defer under 29 U.S.C. § 173(d) ¹ as interpreted in the Steelworkers trilogy. ² These authorities are inapposite, since the Supreme Court long ago declared that the relationship between courts and the arbitration process, the subject of the Steelworkers trilogy, is "quite different" from the relationship between the Board and the arbitration process when the Board is exercising its unfair labor practice jurisdiction. NLRB v. Acme Industrial Co., 385 U.S. 432, 436-37, 87 S.Ct. 565, 568, 17 L.Ed.2d 495 (1967); see also NLRB v. Strong, 393 U.S. 357, 360-61, 89 S.Ct. 541, 544, 21 L.Ed.2d 546 (1969). ³ It is the latter relationship we review today since we are not asked to enforce directly an arbitration decision but to review the Board's refusal to do so. ⁴ The standards governing our review are found in 29 U.S.C. § 160(a) and in the Board's decision in Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955).

Thus focused, this issue involves two related yet distinct arguments as to why the Board should defer to the 1974 arbitration decision. The first is that, since this controversy centers on the same no-strike clause at issue in 1974, that decision has binding precedential effect. Further, since the 1977 contract contained the same no-strike clause and did not specifically repudiate or limit the 1974 decision, it has been ratified by the parties and incorporated by silence into their 1977 contract.

Precedential Effect

Section 160(a) declares in relevant part: "The Board is empowered ... to prevent any person from engaging in any unfair labor practice.... This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise." Under section 160(a), therefore, the Board clearly need not have deferred to the 1974 decision. However, the Board, in the exercise of its discretion, may choose to honor arbitration awards under certain circumstances. In Spielberg, the Board announced three criteria that would determine its "recognition" of an arbitration award: "the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act." 112 N.L.R.B. at 1082. Spielberg retained its vitality after the Steelworkers trilogy, see, e.g., NLRB v. Plasterers' Local No. 79, 404 U.S. 116, 136-37, 92 S.Ct. 360, 372, 30 L.Ed.2d 312 (1971), and has been endorsed by the Supreme Court and nearly all of our sister circuits. ⁵ We join them in approving the Spielberg doctrine as well. ⁶

It is the duty of the courts to insure Board adherence to the Spielberg doctrine. Six circuits have addressed the question of the standard of review used in evaluating Board application of the Spielberg doctrine. All agree that it is an abuse of discretion standard. ⁷ We agree with these cases and adopt the abuse of discretion standard.

Having decided the standard of review, we turn to the Board's actions here. In reliance on its prior decisions, the Board declined to defer to the 1974 arbitration decision since it was repugnant to the Act, one of the three Spielberg criteria. See 254 N.L.R.B. at 317 n.4. Specifically, the decision was repugnant to the Act since the Board

has held that it is a violation of Section 8(a)(3) and (1) of the Act for an employer to single out union stewards for discipline where the stewards merely participated in an unprotected strike along with other employees. In so concluding the Board (has) reasoned that such different treatment of stewards...