Hawaiian Hauling Service, Ltd. v. National Labor Relations Board
545 F.2d 674
9th Cir.
1976
Check Treatment

*1 a it seems useless responsibility, have may a it be an automobile or whether

gesture, warrant

suitcase, search require property. inventory

effect States, v. U.S. United

Harris (1968); United 19 L.Ed.2d Gravitt, v. States Mitchell, F.2d 1974); United States 1972); Lip- United States v. 1970);

scomb, 435 United F.2d Robbins,

States Blackburn,

1970); United States 1968). (6th Cir. ap- on this other contentions

Appellant’s merit. are without

peal is affirmed.

HUFSTEDLER, Judge (concur- specially).

ring following result teach-

I concur in the Opperman (1976)

ing of Dakota v. South - 3092, 49 -,

1000. SERVICE,

HAWAIIAN HAULING Petitioner,

LTD.,

NATIONAL LABOR RELATIONS

BOARD, Respondent.

No. 75-2827. Appeals,

United Court of States

Ninth Circuit.

Nov.

Rehearing En Banc Denied 30, 1976.

Dec. Torkildson, (argued), Jossem

Jared Conahan, Honolulu, Hawaii, pe- for Katz & titioner. N.L.R.B., Bader, (argued), Atty.

Richard C., respondent. D. Washington, *2 WRIGHT, pictures HUFSTEDLER and had condoned Before the display PELT,* and that Judges, and VAN District therefore the warning Circuit second let- ter should be Judge. Rogers rescinded. denied this, and Richardson called Rogers a liar. HUFSTEDLER, Judge: Rogers discharged him on spot, admit- presents question tedly appeal This of account of Richardson’s scope of our review of a National accusation.2 proper (“NLRB”) Board decision1 Labor Relations grieved The union the discharge to arbi- refusing to defer to an arbitration award. tration, contending that Richardson’s con- that the Board acted within its We conclude meeting duct at the activity refusing in to follow the arbitra- discretion meaning within the of 29 U.S.C. 157. The § tor’s award in this case. arbitrator issued an unexplained award in which he ruled that “the discharge ques- in controversy discharge arises from the proper.”3 tion was Richardson, employee Administrative an of Hawaiian Judge award, Law deferred to the Service, Ltd., Hauling (“HHS”), when Rich- NLRB ruling overturned that by a divided general manager called HHS’s a liar ardson vote, petitions and HHS now deny en- grievance meeting. at a Before this inci- forcement. dent, employed by Richardson had been years for 22 and had as a HHS served NLRB deference to an arbitration award Shop Teamsters Union Steward for 14 now integral part of the administra- gave warning Richardson two years. HHS law, tion of federal labor but Board defer- October, in 1973. The first con- letters ence is nonetheless discretionary. As the protracted cerned a leave absence. noted in Court NLRB v. Plasterers’ Union : “ charge concerned a that Richardson second challenged conduct [W]here displayed pornographic photographs on had poses an arbitrable under a collec- January, May, desk in his tive-bargaining contract but is also an have been which said to discovered practice unfair jurisdic- within the 3,1973, by ordered removed on October will, tion of the the Board as a Rogers, president general vice HHS’s matter of policy, defer to the arbitral 15, 1973, manager. On October Richardson settlement, although it is not bound to do ¡S' agent Rog- and the union business met with Although so the LMRA. the Board supervisor ers and Richardson’s immediate statutorily required to honor arbitra- concerning warning letters. Richardson situations, tion awards in such it often Rogers that contended had been aware of defers to them if the arbitrator has con- * Pelt, Robert Van hearings Honorable Senior United are unrecorded and concluded that a Judge, Nebraska, States District District of sit- discharge decision whether or not a was for ting by designation. necessarily “just statutory cause” decides the discriminatory discharge. issue The deci- 1. 219 NLRB No. 1974-75 NLRB CCH Decisions upon disapproval prior sion was based 16,065 (July 1975). ¶ withholding practice evidence in presentation proceedings before the Board. Id. at 2-3 & n.2. our that Because of NLRB refusal to parties stipulated 3. the award would proper Spiel defer was under standards only conclusions, contain the arbitrator’s berg Mfg. (1955) 112 NLRB we need any the award would not comment on apply not decide whether the Board must Elec evidence, transcript and that no would be made Reproduction hearings tronic to arbitration hearing. hearing prior This was held conducted before the date of that decision and Reproduction in the Board’s decision Electronic express opinion appli no on the merits of such Corp., 213 NLRB 1974-75 CCH cation. Nor do we have to decide whether the 15,046 (1974), NLRB Decisions ¶ which the Reproduction standard is Electronic valid. See changed practice refusing Board its to defer Banyard (D.C.Cir.1974), U.S.App. v. NLRB gave to an award which no indication that the D.C. 347-49 where the lack actually arbitrator ruled on the unfair adequate explanation of an written for an practice issue. Electronic require held award was nondeferral. acknowledged that most yard v. (D.C.Cir.1974) U.S.App. practice.” alleged unfair labor sidered 347; Provision 116, 136-37, 360, D.C. ((1971) 404 U.S. Workers, supra, at 1249; Horn & House (citations omitted). Rubber, 679; Hardart, supra, at Auburn 160(a).) See also 29 U.S.C. § supra, 3.) court Upon review this *3 majority decision of the the whether NLRB question is therefore this squarely Board in case relied on the reaching in its discretion deferral abused its Spielberg that re criterion deferral will be (Machinists Local 1309 NLRB decision.4 jected repugnant if the arbitral award is to 700, 849; Local 1976) F.2d 530 Cir. the and National v. NLRB (2d 1975) Union Cir. Machinists (“Act”). majority Relations Act Labor Longshore 244; NLRB v. 237, 525 F.2d thought of the Board the that effect of the 27 men’s Local 1975) Union 514 “substantially employ award dilute[d] 483; House Provision Workers F.2d right fully present during ee’s his case NLRB 1974) 274 v. Local Union grievance (219 and proceedings” arbitration 1249; Associated Press NLRB 3) by No. at upholding NLRB a dis 396, 492 F.2d U.S.App.D.C. 160 (1974) charge of an employee epithet who used the & Hardart Co. 666; (2d v. Horn NLRB during grievance proceeding. the “liar” 679; NLRB v. Auburn 1971) F.2d 439 Board abuse did not its wide discretion 1967) Inc. (10th Cir. 384 Rubber F.2d characterizing the in thus effect of the arbi ) Board has established criteria 3. The refusing tral decision and in to defer to the to this extent self-im guide its decision and The Board’s well award.7 decision was its limit discretion.5 posed restraints Pe Crown Central the within rationale Board, we must insure that it reviewing the Corp. v. NLRB 1970) troleum 430 they until are to its own standards adheres the Crown court As appropriate 724. changed by the Board. We will properly observed, grievance meetings gen ly often unless the Board deny not enforcement high Shouting profani and erate emotions. or departs from its own standards6 ty protected common and are activities are (Ban- argues setting.8 are themselves invalid. in Petitioner its standards this 7. We are not free to substitute our 4. An NLRB decision can also be attacked on ' decision, if, members, upon review the basis that the for the Board’s even as Board we whole, by minority supported thought might not record as a sub- have that the members’ Corp. persuasive. stantial evidence. Universal Camera were more Cf. NLRB views 492-96, 96-97, (1951) (1957) 340 U.S. 71 NLRB Drivers Truck Union However, generally. 95 L.Ed. 456. that issue is S.Ct. 676. only argues Winter, HHS Agency also not before as that the us “Judicial Review of Decisions: applying Court,” of law in Sup.Ct. made errors U.S.C. Board Labor and Board 158(a)(1), (b)(3), and that the Board’s §§ defer- 53. Rev. ral was an abuse of discretion. language do 8. “Neither we think the [“damn Spielberg Mfg. (1955) g.,E. NLRB “these . damn lies” Crown Petro- lies” leum, 1080; (1962) International Harvester Co. by used dis- 430 F.2d at n.3] [the 923; Collyer (1971) NLRB Insulated Wire charged employees] opprobrious was so as to 837; Electronic pale’ pro- carry ‘beyond them Act’s Note, (1974) Corp. 213 NLRB 758. See “The repeatedly observed that tection. passions It has been Arbitration,” (1968) NLRB and Deference to disputes high run and that survey pre-1968 L.J. 1191 for a Yale commonplace. epithets and are accusations practice. deferral disputes meetings arising out of be- Grievance employer employee not suggest are calculat- tween 6. “We do not that the Board can an- tranquil- peace policy regarding create an aura of total a ed to ity nounce deference arbitra- lavishly exchanged. blithely ignore it, thereby compliments leading are tion astray litigants then where Adding depend upon we to that of who it. But our disclaimer it can employees] change mind or alter its conduct of [the its standards defer- do not condone the respects necessarily meeting, not feel in some without but we do ence gaging en- in the bargaining blameworthy justify will in conduct so as to be served collective interests by calling (Horn rigid imposition it our abuse of discretion” of a standard external Hardart, supra, 679.) at proper Id. at 731. and civilized behavior.” was itself a epithet only deliberate tor’s decision would contain Richardson’s his conclu- sions, not activity. transcript and thus and that a formal falsehood would however, misses the mark9 argument, testimony This be made of the argu- noted, Rogers presented for as the Board ments there. The uphold- “[w]hen he had not seen the material asserted that ing Richardson’s termination was made in desk, only on Richardson’s Richardson could grievance with the accordance meaningfully pursue grievance” by established proceeding contract of the Rogers’ showing that version was false. parties.

(219 4-5). NLRB No. Because a enjoys preferred position Arbitration large grievances number of turn on credi Congress law. has declared that bility, we think the Board was within its “[fjinal adjustment by agreed a method when it discretion viewed the from upon by parties the desira- pur chill perspective possible method for ble settlement of dis- *4 suing the grievances and extended Crown putes arising application over the or inter- to cover the facts before us. rationale pretation existing of an collective-bargain- GRANTED. ENFORCEMENT ing agreement.” 173(d) (1970). 29 U.S.C. § Supreme Court has viewed arbitration WRIGHT, Judge (dissenting). serving as the by national interest offering an alternative to economic coercion.1 respectfully I dissent. Although it is clear that the NLRB need controlling issue here is whether automatically not defer to the arbitrator’s conduct at the October 15 Richardson’s decision, Co., N.L.R.B. v. Acme Industrial meeting activity. was While im 432, 565, 385 U.S. 437 87 S.Ct. 17 L.Ed.2d pulsive may protected during behavior be (1967), 495 it attempts to do so as a matter grievance proceedings, N.L.R.B. v. Thor policy. N.L.R.B. Union, v. Plasterers’ Co., 584, Power Tool 351 F.2d 587 Cir. 116, 136-37, 360, 404 U.S. 92 S.Ct. 30 1965); Corp. Crown Central Petroleum v. (1971); 312 L.Ed.2d William E. Arnold N.L.R.B., Co. 1970), 730 Carpenters, 16-17, v. 417 U.S. 94 S.Ct. deliberate falsehoods are not. Owens-Corn 2069, 40 (1974). L.Ed.2d 620 N.L.R.B., ing Fiberglas Corp. v. 1969); 1365 Letter Carriers major The Board made its first statement Austin, 264, 277-78, 94 S.Ct. on deference to arbitration in Spielberg (1974). inquiry 41 L.Ed.2d 745 Co., Mfg. (1955), 112 NLRB 1080 where it Richardson’s thus whether conduct was it said that would not reconsider arbitra- protected griev as to cross the line of such proceed- tors’ awards on their merits if the activity. ance ings appeared regular, to be fair and all submitting grievance the bound, In to arbitra- parties agreed had to be and the tion, parties stipulated the the arbitra- panel decision of the arbitration was not also, Telephone Telegraph American 1. United Steelworkers v. Warrior & Gulf Nav. (2d 1975) 1161-62 363 U.S. L.Ed.2d 1409 (“A salty language amount of certain or defi- (1960). As one commentator has noted: ance will be tolerated . a closed [in] Supreme recognized Court both “[T]he meeting partici- committee where scope interpretation a broad and a narrow ' pants, engaging behind closed doors in a frank scope judicial review for the arbitrator’s differences, might expected discussion be to award. deferred to Court the [T]he adversely exhaust some steam without affect- process because it was the method ing employer’s business”). the conduct of its by parties chosen the and because the arbitra- tor was considered to be most familiar with the by petitioner inapt 9. The authorities cited are bargaining agree- functions of the collective ment, they during because do not involve activities operation plant, past prac- the grievance procedure. the course representation campaigns the Unlike parties’ bargaining relationship.” tices in the Note, negoti- and contract (1976). 51 Wash.L.Rev. ations, grievance procedures analogous are litigation. the held that it poli- The fact that Board has purposes to the clearly repugnant Management Relations deferring Labor consider to an award will not cies (LMRA). Id. at 1082. unfair practice Act issue was unless presented to by and considered both Co., 138 N.L. International Harvester not change does the result here. arbitrator N.L. Ramsey sub nom. enforced R.B. 1964), the Board R.B., F.2d 784 here parties stipulated that all rele- test, stating that language of the varied properly were before the arbi- issues vant adjudicate an unfair it would con- Because Board was not trator. which from the same claim arose practice differing applicable with contractu- fronted it arbitrated “unless as an facts standards, statutory brevity al and pro appears the arbitration clearly specu- award did not force it the arbitral fraud, collusion, ceedings by were tainted arbi- applied by late as to standard unfairness, irregulari procedural or serious applicable standard as de- Both trator. repug or that ties veloped by case law and the relevant issues to the nant ably parties briefed 927.2 Act.” to the considera- presented arbitrator tion. Carey approvingly was cited This test Corp., 375 U.S. Westinghouse Electric is not The test what the written 401, 11 (1964), contains, what con- but the arbitrator employer compelled the Court where Superior Transportation Motor sidered. *5 Board alone though even arbitrate Co., Inc., (1972); Termi- 200 NLRB No. 139 binding on the em render a decision could Co., Transport (1970). nal 185 NLRB rival and two unions. ployer The arbitrator’s decision meets the stan- test, either the arbitrator's Under repug- clearly for deferral. It is not dards upheld. been case should have in this policies nant proceedings was no claim that There implicit it is LMRA and in the decision Rather, _ regular. not fair relevant issues the arbitrator considered all activity was that Richardson’s Board held presented to him. that, a union by precluding be de- The decision Board should calling credibility management from nied enforcement. question, the arbitrator had into witnesses with effectiveness of the

interfered arbitration mechanism.

Thus, said the award was to the of the Act.

repugnant award, however,

reversing the arbitrator’s judgment Board substituted its factual deciding the arbitrator’s in the motiva- behind Richardson’s conduct.

tion Board should defer to the arbitra- questions fact and

tor’s

credibility. Cf. Electronic Corp., (1974). NLRB No. Moving Trucking one commentator has viewed this as 3. John Klann 2. At least extension, Cir.), than a variance of cert. a drastic rather enf'd F.2d 261 Note, denied, Spielberg doctrine. 24 L.Ed.2d 84 77 Yale L.J. Accord, NLRB, Banyard (1968). (1969). 164 U.S. (1974). App.D.C. 505 F.2d 342