N.L.R.B. v. Babcock and Wilcox Co.

Decision Date10 January 1983
Docket NumberNo. 80-1527,80-1527
Citation697 F.2d 724
Parties112 L.R.R.M. (BNA) 2713, 96 Lab.Cas. P 13,982 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BABCOCK AND WILCOX COMPANY, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Andrew Tranovich, Cleveland, Ohio, for petitioner.

Richard V. Sica, Richard I. Thomas (argued), Thorp, Reed & Armstrong, Pittsburgh, Pa., for respondent.

Before ENGEL and KENNEDY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

ENGEL, Circuit Judge.

The National Labor Relations Board ("the Board") petitions for enforcement of its Order, reported at 249 NLRB 739 (May 23, 1980), requiring Babcock and Wilcox Company to rectify its 1977 discharge of employee Alpheus Stanford. At the time of his discharge, Stanford was on disability leave from his job at the Company's Alliance, Ohio plant, and had recently applied for retirement. The Board's Order requires the Company to change Stanford's status from "discharged" to either "retired" or "retired on disability", and to correct its personnel records accordingly. The Order is based upon the Board's finding that the Company violated section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. Sec. 158(a)(1), by discharging Stanford under the mistaken belief that he joined with other employees in an illegal strike against the Company. We enforce the Board's Order.

Before his discharge, Stanford was President of Local 3059, United Steelworkers of America, which represented approximately 400 hourly employees at the Company's Alliance plant. Section XXIII of the collective bargaining agreement then in effect contained a no-strike clause, violation of which was punishable by discharge:

During the term or any extended term of this Agreement, the Union will not cause a strike nor will any employee or employees take part in a strike, intentional slow-down in the rate of production, or any other interference with, or stoppage of the Company's work. Any employees who so violate this Agreement shall be subject to immediate discharge....

It is undisputed that from March 15 to March 20, 1977, the employees at the Alliance plant engaged in a strike in violation of the no-strike agreement. It is also undisputed that Stanford had no part in organizing the strike. The strike began when six non-employee union activists came to Alliance from Cleveland and set up a picket line at the entrance to the plant. The Company's employees refused to cross the picket line, and a five-day general work stoppage followed. 1 After the strike ended, the Company disciplined those employees believed to have led the strike. Nine employees, including Stanford, were discharged, four employees were suspended without pay from 7 to 14 days, and six employees received warning letters.

Stanford and the other eight discharged employees pressed their grievances to arbitration, the final stage of a five-step grievance procedure established by the collective bargaining agreement. Section XVIII of the Agreement provides that the decision of the arbitrator "shall be final". After a three-day hearing, the arbitrator upheld Stanford's discharge, finding that he participated in the illegal strike. Specifically, the arbitrator found that Stanford might have been able to use his influence to stop the strike but "clearly did nothing to stop [it] and instead adopted the strike", and that Stanford "was the only local union officer who openly supported the strike."

Stanford next filed an unfair labor practice charge with the Board, claiming that he did not participate in the illegal strike and that he was therefore discharged for engaging in union activities protected by section 7 of the Act. The Administrative Law Judge ("ALJ") held a full evidentiary hearing and rejected the arbitrator's findings of fact and decision. He independently held that "Stanford did not instigate, participate [in], or adopt [the] illegal walkout." In a 2-1 decision, the Board adopted the factual findings of the ALJ that Stanford "had no significant role either in the planning or the execution of the strike", 249 NLRB at 740, and that his discharge therefore violated section 8(a)(1) of the Act.

In reaching its decision, the Board applied the standards first articulated in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and refused to defer to the arbitrator's contrary finding of Stanford's adoption and support of the illegal strike. In Spielberg, the Board held that it would refuse to exercise its statutory power to remedy unfair labor practices, see 29 U.S.C. Sec. 160(a), and defer to the award of an arbitrator when:

the [arbitration] 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.

Spielberg Mfg. Co., supra, 112 NLRB at 1082. In this case, however, the Board found the arbitrator's decision to be "clearly repugnant to the purposes and policies of the Act", and therefore unworthy of deferral under Spielberg. The Board found that to the extent the arbitrator's decision was based upon or influenced by Stanford's failure to take affirmative steps to end the strike, it was inconsistent with the Board's decision in Gould Corp., 237 NLRB 881 (1978), in which the Board held that union officials may not be disciplined for their mere failure to attempt to end an illegal strike. 249 NLRB at 740. The Board also disregarded the arbitrator's findings that Stanford "adopted" and "openly supported" the strike, on the ground that they were not supported by "substantial evidence" and therefore repugnant to the Act. 2 It therefore ordered Stanford's reinstatement.

In opposing enforcement, the Company argues first that the Board erred in even deciding this case because Stanford failed to file his unfair labor practice charge with the Board within six months after the practice occurred, as required by section 10(b) of the Act, 29 U.S.C. Sec. 160(b). Second, the Company claims that the Board abused its discretion in refusing to defer to the factual findings of the arbitrator. Finally, argues the Company, the Board's independent finding that Stanford played no role in the strike is itself not supported by substantial evidence.

I.

Section 10(b) of the Act, 29 U.S.C. Sec. 160(b), provides that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made ...." (emphasis added). This six months filing limit is "a statute of limitations and not a restriction on the jurisdictional powers of the Board." NLRB v. Local 264, Laborer's Int'l Union, 529 F.2d 778, 785 (8th Cir.1976).

It is undisputed that Stanford filed his unfair labor practice charge with the Board on September 26, 1977, and that the statutory notice was served upon the Company the following day. Therefore, the alleged unfair labor practice must have "occurred" on or after March 27, 1977, in order for Stanford's charge to be timely under the statute. The Company's theory is that Stanford was "disciplined" on March 24, 1977, when he was suspended prior to being discharged, and that any unfair labor practice occurred on that date. Further, the Company urges that March 24 should be the relevant date because that is when Stanford first knew that he would be discharged.

When the Company's actions against Stanford are measured against the procedures in the collective bargaining agreement in effect at the time of Stanford's suspension and discharge, it appears that the alleged unfair labor practice did not occur until at least March 28, 1977, and that Stanford's unfair labor practice charge was therefore timely filed and served. Under the agreement, Stanford's March 24 suspension was neither a discharge nor a final decision by the Company of any kind; it was merely a tentative first step by the Company toward imposing discipline upon Stanford. Section XVI of the collective bargaining agreement provided that a union member "shall not be preemptorily discharged". Instead, the Agreement sets forth an elaborate procedure by which the Company must first suspend the employee for not more than five days, during which the employee is entitled to a hearing before the Company. Only after such a hearing may the Company make its final decision:

After such hearing, the Company may conclude whether the suspension shall be converted into discharge, or dependent upon the facts of the case, that such suspension may be extended or revoked. If the suspension is revoked, the employee shall be returned to employment and receive full compensation at his regular rate of pay for the time lost ....

After the Company's personnel manager orally informed Stanford on March 24 that he was being suspended for five days "subject to discharge", Stanford promptly demanded a discharge hearing. The hearing took place on March 25. It was not until March 28 that the Company gave Stanford oral notice of its decision to discharge him. This decision was not to be effective until March 30, 1977, and in fact it was not until March 30 that Stanford received in the mail the Company's written notice of his discharge. The Company's March 24 suspension of Stanford therefore had no significance, especially since Stanford was on disability leave at the time of the suspension and was not working anyway. Had the Company decided not to discipline Stanford after the hearing of March 25, the effects of Stanford's initial suspension would have been fully remedied by backpay and a lifting of the suspension pursuant to the terms of the collective bargaining agreement. Stanford therefore had no unfair labor practice to complain of to the Board until at least March 28, 1977. 3 His unfair labor practice charge,...

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