Servair, Inc. v. N.L.R.B.

• Decision Date: 28 February 1984
• Docket Number: Nos. 82-7691,83-7034,s. 82-7691
• Citation: 726 F.2d 1435
• Parties: 115 L.R.R.M. (BNA) 3067, 100 Lab.Cas. P 10,848 SERVAIR, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Cross-Petitioner, v. SERVAIR, INC., Cross-Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1435

726 F.2d 1435

115 L.R.R.M. (BNA) 3067, 100 Lab.Cas. P 10,848

SERVAIR, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Cross-Petitioner, v. SERVAIR, INC., Cross-Respondent.

Nos. 82-7691, 83-7034.

United States Court of Appeals Ninth Circuit.

Submitted Jan. 30, 1984.

Decided Feb. 28, 1984.

Parry Grover, Davis, Wright, Todd, Riese & Jones, Anchorage, Alaska, for petitioner.

Elliott Moore, Washington, D.C., for respondent.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before TRASK and GOODWIN, Circuit Judges, and EAST ^*, District Judge.

GOODWIN, Circuit Judge.

Servair petitions this court under 29 U.S.C. Sec. 160(f) to set aside an order of the National Labor Relations Board finding that Servair violated Sec. 8 of the National Labor Relations Act, 29 U.S.C. Sec. 158, by discharging 19 employees. Servair contests the Board's refusal to defer to an earlier arbitration decision in Servair's favor. The Board found that the strike had been in response to the illegal discharge of a fellow-employee and was therefore protected activity despite the "no-strike" clause in the collective bargaining agreement. See Mastro Plastics Corp. v. Labor Board, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956). The Board cross-petitions for enforcement of its order that these employees be reinstated with back pay.

I. Facts

Servair furnishes ground services to airlines with routes passing through Anchorage, Alaska. In 1976, while Servair's employees were represented by the International Association of Machinists and Aerospace Workers (Machinists), the Teamsters Union began an organizing campaign at Servair, and in 1977 the Teamsters filed a representation petition with the Board.

During the election campaign Servair management repeatedly attempted to influence the outcome of the election. Servair management interrogated employees, either instigated surveillance of employees or created the impression of surveillance, threatened to discharge employees if the Teamsters won, and discriminated against Teamster job applicants. The administrative law judge found that these practices violated 29 U.S.C. Sec. 158. The company did not except to the findings, and does not contest them here.

Events following the election in April 1977 are, however, disputed. A third union, the International Union of Operating Engineers, intervened, was openly supported by management, and received a majority of the employees' votes. In June, Servair fired George MacLean, who had been active in the Teamsters' organization campaign. MacLean filed a grievance and was reinstated. MacLean later left the company--voluntarily, according to Servair.

Before the grievance committee met on MacLean's discharge, however, 19 Servair employees stopped work to protest his firing. The Machinists-Servair collective-bargaining agreement, still in force, contained a "no-strike" clause. Servair discharged the strikers, but on the same day offered to reinstate them. Most of the 19 striking employees did not return to work, but filed grievances. The grievances were denied and went to arbitration under the terms of the bargaining agreement. The Machinists, representing the strikers at arbitration, chose to pursue a theory that the work stoppage did not constitute a strike. The arbitrator upheld the discharges, however, finding that the stoppage had violated the "no-strike" clause in the contract.

At approximately the same time the grievances were filed, the Teamsters filed charges with the Board alleging that Servair had committed an unfair labor practice by discharging the 19 employees. The Board issued a complaint that was consolidated with the pending complaints arising from the election. The administrative law judge, refusing to defer to the arbitral award upholding the discharges, found that MacLean's discharge had been discriminatory and that the strike in response to his discharge was protected activity. The administrative law judge concluded that the discharge of the strikers was an unfair labor practice and recommended that the strikers be reinstated with back pay. The Board adopted the findings and recommendations of the administrative law judge.

II. Deferral

The primary issue before us is whether the Board properly refused to defer to the arbitral award upholding the discharge of the 19 strikers.

The Board is provided with statutory authority under section 10(a) of the National Labor Relations Act, 29 U.S.C. Sec. 160(a), ¹ to adjudicate and remedy unfair labor practices. The presence of other means of resolving disputes, including arbitration, does not oust the Board of jurisdiction. NLRB v. Strong, 393 U.S. 357, 89 S.Ct. 541, 21 L.Ed.2d 546 (1969); Ad Art, Inc. v. N.L.R.B., 645 F.2d 669, 674 (9th Cir.1980). The Board has considerable discretion, however, to respect an arbitration award if to do so serves the fundamental purposes of the Act. Carey v. Westinghouse Corp., 375 U.S. 261, 270-72, 84 S.Ct. 401, 408-09, 11 L.Ed.2d 320 (1964).

In making its deferral decision, the Board is required to accommodate two competing statutory objectives. N.L.R.B. v. Max Factor and Co., 640 F.2d 197, 201 (9th Cir.1980), cert. denied, 451 U.S. 983, 101 S.Ct. 2314, 68 L.Ed.2d 840 (1981). One is to promote industrial stability by encouraging the private resolution of labor disputes through an arbitration process agreed upon by the parties. Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 377-79, 94 S.Ct. 629, 636-37, 38 L.Ed.2d 583 (1974); Steelworkers v. Enterprise Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960); Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350, 4 L.Ed.2d 1409 (1960); 29 U.S.C. Sec. 173(d). ² The other objective, equally important, is the Board's statutory obligation to protect employees in the exercise of protected Section 7 rights by preventing unfair labor practices. ³ See Ad Art, 645 F.2d at 675-76.

The task of accommodating these two objectives falls initially on the Board. Ad Art, 645 F.2d 674; Max Factor, 640 F.2d at 201. Our review of the Board's deferral decision is limited to determining whether the Board has abused its discretion. Hawaiian Hauling Service, Ltd. v. N.L.R.B., 545 F.2d 674, 676 (9th Cir.1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1061 (1977). This court will not deny enforcement "unless the Board clearly departs from its own standards or its standards are themselves invalid." (Footnote omitted.) Id.; see also Ad Art, 645 F.2d at 674-675; Max Factor, 640 F.2d at 201; N.L.R.B. v. Safeway Stores, Inc., 622 F.2d 425, 428 (9th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Alfred M. Lewis, Inc. v. N.L.R.B., 587 F.2d 403, 407 (9th Cir.1978).

The Board first articulated its deferral standards in Spielberg Manufacturing Company, 112 N.L.R.B. 1080 (1955), in which it announced that it would defer to an existing arbitration award if: (1) the arbitration proceedings appeared to have been fair and regular; (2) all parties agreed to be bound; and (3) the arbitrator's decision was not "clearly repugnant to the purposes and policies of the Act." Id. at 1082; see also International Harvester Co., Indianapolis Works, 138 N.L.R.B. 923, (1962) enforced sub nom., Ramsey v. N.L.R.B., 327 F.2d 784 (7th Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1938, 12 L.Ed.2d 1052 (1964).

The Board later narrowed its deferral policy, concluding that deferral would be inappropriate even when the Spielberg requirements had been satisfied unless there was at least some evidence that the arbitrator had in fact passed upon the unfair labor practice issue. Yourga Trucking, Inc., 197 N.L.R.B. 928 (1972); Airco Industrial Gases, 195 N.L.R.B. 676 (1972).

Soon thereafter, however, the Board concluded that it was being insufficiently deferential to arbitral awards. Adopting the position of the dissenting opinions in Yourga and Airco, the Board held in Electronic Reproduction Service Corp., 213 N.L.R.B. 758 (1974), that where the statutory issue could have but had not been raised at arbitration, it would defer unless there were unusual circumstances. Because in Electronic Reproduction, it appeared that the union had knowingly refrained from raising the statutory issue--discriminatory discharge--at arbitration, the Board reasoned that allowing the union to raise the issue before the Board furthered "the very multiple litigation which Spielberg ... [was] designed to discourage." Id. at 761; see also R. Gorman, Labor Law 742 (1976).

This expansion of Spielberg soon met with judicial resistance. See Banyard v. N.L.R.B., 505 F.2d 342 (D.C.Cir.1974). In Stephenson v. N.L.R.B., 550 F.2d 535 (9th Cir.1977), this court also expressly rejected Electronic Reproduction, finding it an "unjustifiable extension" of the Board's deferral policy. Stephenson, 550 F.2d at 539. The Stephenson court reasoned that absent substantial and definite proof that the arbitrator had been presented with and "clearly decided" the statutory issue, deferral was an abdication of the Board's obligation to adjudicate unfair labor practices. Id.

In apparent response to this judicial resistance, the Board overruled Electronic Reproduction. In Suburban Motor Freight, Inc., 247 N.L.R.B. 146 (1980), the Board declared that it "will no longer honor the results of an arbitration proceeding under Spielberg unless the unfair labor practice issue before the Board was both presented to and considered by the arbitrator." Id. at 146-47; see also N.L.R.B. v. Magnetics Intern., Inc., 699 F.2d 806 (6th Cir.1983); "The clear weight of authority holds that the Board should not defer in the absence of evidence that the arbitrator has resolved the unfair labor practice charge and that the Spielberg criteria have been met." Magnetics, 699 F.2d at 809. See also Liquor Salesmen's Union Local 2 v. N.L.R.B., 664 F.2d 318 (...