*1 court, is graph opinion 20 of the is set privilege aside
before informant showing make a
defendant must readily available he seeks not
information imposed the other We have
from sources. respect with an analo- requirement
same news qualified privilege of media
gous Cuthbertson, 651 v.
sources. United States (3d foregoing With the
F.2d 189 holding quali- on the
understanding of privilege identity not to disclose the
fied informant, join opinion of the I
court. INC., Petitioner, BROTHERS,
HERMAN LABOR
NATIONAL RELATIONS
BOARD, Respondent.
No. 80-2488. Appeals, Court of
United States
Third Circuit.
Argued July 1981. Sept. 3,
Decided
Rehearing Denied Dec. *2 Flamm, Clark, (argued),
Walter H. Jr. Ladner, Fortenbaugh Young, & Philadel- Pa., Powell, Jr., Cunniff, phia, D. Richard McAleese, Pa., Bray Bala-Cynwyd, & petitioner. Moore,
Elliott Deputy Associate Gen. Counsel, Schumann, W. Christian Ann Jones (argued) Diamond Wash- C., ington, respondent. D. SEITZ, Judge, Before Chief VAN HIGGINBOTHAM, DUSEN and Circuit Judges.
OPINION OF THE COURT DUSEN, Judge. VAN Senior Circuit Brothers, (the “Company”) Herman Inc. petitions this court to review and set aside an order Rela- issued the National Labor (“Board”). tions Board The Board seeks enforcement its order. The (1) contends that the Board erred in re- fusing procedure to defer arbitration bargaining established collective in the personal Bowl- attend to business off to (2) the did agreement, and Green, рermis- his granted Mo. Hansen ing the National 8(a)(1) and violate § (“Act”), Act U.S.C. sion. Labor Relations (3). careful consider- After job assign- his Normally, received ation, deny we have decided to Dispatch Supervisor Hansen. ments from applica- the Board’s ny’s petition grant evening would call Stief either *3 Hansen
tion for enforcement. of, job before, morning day the or 1 FACTS assigned accord- Jobs were had to done. this standard ing seniority. Following to engages in the interstate The ear- Hansen called Stief dispatch procedure, freight com- transportation of and other day’s his work ly give on 4 to him October repre- employs modities. It truck drivers wife Hansen that told assignment. Stief’s Drivers, by Warehouse- sented the General was ill could not work. Stief and 21, men, In- Helpers and Local No. Union Teamsters, of ternational Brotherhood evening give again that to Hansen called Chauffeurs, of Helpers Warehousemen and job October 5. assignment his for Stief (“Union”). Stief, complainant America and reminded answered call Mrs. Stief a in this works October 5 given that had Hansen he Stief is a Union member. truck driver and that, in- Hansen had heard off. Because arose, business, dispute attending personal At the time this the Union stead operating being were an under ballots going was to watch the Stief expired their collectivе bar- counted, extension of that he Mrs. Stief told Stief A gaining agreement. count, new collective bar- Compa- ballot went to watch the negotiated had but gaining agreement been letter for exces- warning would issue a ny yet not The Union submitted this ratified. repeated this sive absenteeism. Hansen proposed membership contract its and, telephone later in a statement Stief approval. ballots were distributed and Mail conversation, be in a lot told he would Stief Hannibal, Mo., on due be counted if he went to the union hall of trouble 5, 1979. October Hannibal. Union, A in- dissident faction within count on did watch the ballot Stief Stief, cluding opposеd ratification. This personal to his 5. He did attend October faction’s on the opposition focused so-called where and went Louis business also to St. provision mileage payment provision. This awith Union problems discussed several computing altered the manner of the driv- representative. business rate, wages: using hourly ers’ instead of Friday, the next Because a October proposed using agreement required did not day 8. Stief work was October mileage rate. or on a call to work on October 8 receive 26, 1979,2 September and On Stief wrote receive, how He any day thereafter. did distributed letter to his fellow drivers ever, Hubbard. a call from Union Steward mileage payment which he criticized the Hubbard to call had asked provision. acknowledges that, to his October and tell him due Stief management learned Stief had absences, to call in his obliged he was it. written the letter was irritated availability to work. Hubbard called Stief 3, message 6 and Dispatch relayed this on October On October Stief asked Su- if he on 8.3 Both calls were made pervisor again Hansen could take October October (A. wording findings findings These the ALJ include facts reflect of the ALJ 3. 406-07): 401-411) (Á. by the and are not contested here Company. position Respondent “The took away permission did have to be Stief noted, 5, 2. Unless all dates refer to otherwise Friday, from work on October circumstances, including un- all his under 4, availability on October due illness request. discharge. Stief refused to Stief’s The chronology of events call in his availability Compa- because “the particularly noteworthy.
ny obliged (A. to call him” a grievance filed on October aIn letter dated October 1979. On October the arbitration ny notified discharge. his committee,4 Accord- consisting of three union and ing letter, voluntarily quit Stief had three management representatives, con pursuant 6(a). to Work Rule Work Rule grievance sidered Stief’s and held he had 6(a) provides: “Absent for 3 consecutive been agree for cause. All now working days without notification. Volun- that certain remarks made tary Quit.” representative rendered this first arbitra
tion proceeding unfair. PROCEDURAL HISTORY November, early la- unfair Stief filed *4 The procedural history of practice this case is charges against bor both the Union complicated by presence of two arbitra- and the Company. charged He Union tion proceedings, both of which concern with unfairly representing him the arbi- at obliged availability tory version, to call in his for work tone of Hubbard’s which is being dispatched. Consequently, before on credited. 6, October when Werbach and Hansеn made Monday, 8, “On October Stief remained up dispatches Monday, and issued the for p. afternoon, home.... response At 4:09 m. that in 8, addition, bypassed. October Stief was In Werbach, request to a second from Werbach, customarily who contacted Union again telephoned Hubbard Stief and talked potential Steward Kenneth Hubbard when a with Company contacting him for 8 minutes about employee problem arose, asked Hubbard to respect making with to known his call Stief and make sure he understood the availability for work. Stief adhered to his company policy making about himself availa- original position wrongfully that he had been agreed. However, ble for work. Hubbard bypassed by Company, Respon- that the Stief, before Hubbard reached Stief called obliged dispatch, dent was to call him for and p. day Hubbard around thatm. and com- job if griev- he lost his he would file a plained having dispatched. about not been and, necessary, up ance take the matter secretly Maureen Stief testified that she lis- with the Labor Board.» phone. tened to the conversation on another Respondent Hubbard advised Stief to call the “7Fred and Maureen Stief also testified availability work, and make known his for that Hubbard ended the with conversation bypassed but Stief insisted had been and Company the remark that the Union and the obliged that the to call him. s_, going were tired of Stief's to and were failing Stief accused properly Hubbard of to get rid of him. Stief also insisted that Hub- represent members, favoring the Union’s bard made no mention the contention that Company, engaging improper by in conduct obliged report Stief was to himself available hitting mouth, a union member in the and eligible for work on in October 5 order to be resignation. demanded Hubbard’s Hubbard dispatch. making for threat, Hubbard denied hung up phone.7 A few minutes later relayed and insisted that he the Re- placate Hubbard called Stief an effort to spondent’s position respect with to Stief’s explained him. Hubbard that he did not availability. I credit Hubbard over Stief want to see Stief create a situation which respect. respects this In all other the above might suspension, discharge, result in his or telephone version of this is conversation an voluntary quit. Hubbard, According a amalgam of their credited testimonies. In responded Stief that he didn’t mean what any hearsay alleged event the remark is with resigning, he’d said about Hubbard and that intentions, respect Respondent’s is good job Hubbard had hoped done and Stief Hubbard, subsequent alleged the concerning threat stay testimony, he would on. In his Stief, to driver-steward Frank agreed apologized, Stief that Hubbard but Warren. apology threatening insisted that the Stief. Stief also claimed Hubbard stated that telephone “»As indicated Hubbard’s pressures being shop bill, steward were testimony Fred and Maureen Stief’s him, resign too much for and would that he they phone received no call from Hubbard on January. telephone Hubbard’s bill shows clearly October 8 is in error. Hubbard telephone that he made a call to Stief’s num- respect credited with to this conversation.” p. ber at 2:44 m. on October and talked for timing length record, grievance I minutes. find the this is com- 4. called a of the call more consistent with the concilia- mittee. to watсh the if Stief went ciplinary.action charged the and proceeding tration count; (2) violated 8(a)(1) (3). The and violating with ballot ny (3) discharged sub- when it Company are the charges against the activit union protected for his petition. of this retaliation ject matter ALJ never mentioned or con ies.5 law hearing A before administrative to the second arbitration deferring sidered was scheduled judge’(“ALJ”) charges on all February award issued on Immediately prior to January reopen the Union hearing, the start of the moved the record their differences. Pursuant settled decision. the second arbitration to admit agreement, the Union their settlement refused to the motion and The Board denied promised to seek a arbitration con- second not to consider whether or defer even cerning discharge. The Stief’s The Board affirmed second award. arrangement and indicated told of of the ALJ. conclusions object proceeding. to a it would second (1) of: seeks review testimony on Stief’s The ALJ then received not to even consider defer Board’s decision charges against Company. proceeding ring to the second arbitration February grievance On Stief’s (2) conclu (deferral issue), and the Board’s was resubmitted to a different arbitration sion that violated § committee, like that of committee. This The Com when it Stief. union and consisted three October dispute that Hansen’s threat pany does *5 representatives. The management three went to watch the discipline to held: committee a violation of ballot count constitutes presented, on the “Based the facts 8(a)(1).6 §
grievant justly discharged was [Stief] DEFERRAL ISSUE work more THE bein unavailable for [sic] with- days than three without notice and the Board Company argues The work. making out himself available for jurisdiction to its should have refused assert the activi- Although grievant engaged in and, instead, arbitra deferred to the second contract, mileage ty opposition to Board, addressing the tion award. The activity played part this no in the decision reached alter request, deferral discharge.” to held holdings.7 The Board first native deferring to 1980, did have even consider 21, not to February On sub- the second arbitration award because la- regarding mitted its brief Stief’s unfair brought issued or practice Although award not charge bor to the ALJ. closed, hearing attention until after the record had also ALJ’s submitted, brief, Alternatively, copy when the was closed. attached to its record that, second, 1, 1980, the facts this the Board held under February arbitration Compa to The requested it would refuse defer. award and that the ALJ defer to holdings. ny challenges both this second award. We the Board’s determina- July
The ALJ
first address
rendered his decision
defer-
(1)
tion that
it need
even consider
1980. He determined that:
award issued after
ny
8(a)(1)
ring to an arbitration
Dispatch
violated
when its
Su-
§
long-
to a
dis-
is closed. Pursuant
pervisor Hansen threatened
with
the record
discipline
Stief constitutes
threat
ALJ also refused to defer
to the first
Hansen’s
5.
Therefore,
25,
8(a)(1).
we do not
§
arbitration
award rendered
on October
violation
de-
does not contest
this
this
address
conclusion.
termination.
Company’s motion
7. The Board also denied
Although
seeks
of the
review
approval
light
reopen
of our
the record.
see “Petition for
generally,
Board’s decision
defer,
denial was
of the Board’s refusal
433,
Review” at A.
it did
discuss in its brief
appropriate.
argument
or
oral
the Board’s conclusion
standing, discretionary policy,
Furthermore,
the Board would occur.8
had the Com
chosen,
situations,
has
in certain
to relin-
pany requested the ALJ to defer to the
quish
jurisdiction
and defer to the arbi-
second, pending arbitration proceeding, its
tral procedure established in
parties’
request would have been denied. The
bargaining agreement. Spielberg
collective
past
Board has not in the
to pend
deferred
Co.,
Mаnufacturing
ing Co. and approved *6 Wheeling-Pitts in requested Company Because the burgh Steel. decision, deferral the ALJ issued his before the given opportuni ALJ was the time
Normally,
and
the party seeking defer
ty to
ral must
consider deferral. Consideration of
request
make its
at the first oppor
issue, many
the
tunity.
out,
including
As
deferral
cases
points
the Board
the Com
one,
pany
this
delay
did
will not
resolution of the
notify
not
the
sought
ALJ that it
15-16,
dispute
deferral
the
be
hearing
at the
of
because
issue can
resolved
January
Rather,
party
reopening
the
without
the record.
If the
waited until
Fеbruary
(here
seeking
Company)
at which
deferral
the
fails to
time the record
deferral,
had
present
closed
the
supporting
knew of
factors
the
ALJ,
Board,
arbitration
may properly
committee’s
like
refuse to
favorable decision.
Steel,
Company’s
request
supra
failure to
Wheeling-Pittsburgh
defer.9
deferral
at the hearing
closed,
or before the
Requiring
record
at 1015.
the ALJ and Board to
however, is
Generally,
request
understandable.
at least consider the deferral
also
dispute only goes through
promotes
arbitration
policy, poli
once.
deferral
Board’s
Although
knew the
cy
voluntarily adopted.
Union had
Once the
Board
agreed
arbitration,
to seek a
consistently
second
adopted,
it
it
be
did
should
when,
ever,
not know
if
Roxborough
such
applied.
Hospital
arbitration
of
Memorial
though
may
request
8. Even
the ALJ
have known
In
where the
to defer
of the
other cases
meritorious,
may
proceeding
likelihood of a
appears
second arbitration
to
the Board
have
agree-
since it
reopen
opposing par-
was included in
permit
the settlement
and
the record
Board,
ment submitted
ty
against
to the
did
to
deferral. This
submit evidence
present
justifying
not
dispute.
to the ALJ
may delay
factors
defer-
resolution of
contemplаted by
ral
Wheeling-Pittsburgh
as
N.L.R.B., supra
Steel v.
at 1015.
26, 1981).
1976);
Aug.
We hold
Board
(3d Cir.
v.
F.2d 351
agree with
L.U. No.
Int.
its discretion and
Bay
N.L.R.B.
did not abuse
Silver
P.M.W.,
P.,
(9th
clearly repugnant purposes poli- THE VIOLATIONS cies of the Labor Act.” [Nationаl Relations] that the The Board found applying Spielberg After the facts of Act (3) of the when violated case, Members Jenkins and Penello both pro for his retaliation reasons, concluded, although for different tected, concerted activities. not to defer because the second arbitration to defeat knowing admits efforts Stief’s proceeding not appear did to be fair. bargain approval proposed of the collective are con ing agreement. These activities
The Board’s decision that the arbi of the certed activities carried out on behalf proceeding appeared tration unfair protected only can and so are be reversed if the Board its Union and its members *7 abused (3) of the Act. Paper Company discretion. Hammermill v. under and N.L.R.B., however, (3d discharged it Company, F.2d 155 claims 658 Cir. No. 80- al., Brothers, Inc., appreciate expressed the in the See et No. We concerns Herman Case 121, 3, 14-CA-13123, concurring opinion, paragraphs 252 No. note the N.L.R.B. at last two of Inc., appendix 428-29, wording Express, Roadway at where this is N.L. but note that 145 petitioner’s (1963), used: in R.B. 513 cited unnecessary appears it. and to discuss briefs it “Member Penello would not defer grievance-arbitration proceedings herein be- opposed leadership’s deci- 11. Stief the Union employer cause the interests of both the ratify membership the the Union sion to have committee, joint union members of the which (A. 403). ac- “Stief mail ballot contract member, aligned appear has no neutral failing to of Hubbard Steward] cused [Union against grievant the interests of the on the members, represent properly favor- Union’s the crucial issue of whether the contract should improper engaging ing Company, con- the appear- have been of this ratified. Because mouth, by hitting in the a union member duct committee, ance bias the which con- (A.406). resignation” and demanded Hubbard’s trolled, presented, argued, and decided the See note 3 above. grievance grievance, proceedings herein regular’ ‘appear do have been fair and required by Spielberg.” as
208 good pursuant
Stief for
interpreted
differing
cause
to Work Rule
somewhat from the
6(a).
presented
Thus we
yet
are
with
an
shifting
approach
Board’s
burdens
stated in
other
parties
case in
disagree
which the
as Wright
Edgewood
Line.
Nursing
Cen-
why
the employer discharged an employe
ter,
explained:
Inc. this court
e.12
N.L.R.B. v. General
See
Warehouse
employee
would have been fired
“[I]f
Gould,
Corp.,
(3d
1981);
The Company
argues
not,
first
that the Board
permissible and some
.
..
the Board
applied incorrect
applied
law. The ALJ
permissible
must find
reason
“in-part”
so-called
test under which the em
proffered by
is
employer
merely
ployer
violates
only part
pretext
employee
and that
in fact
of the employer’s
discharge
reason for
disciplined
because
anti-union sen-
unlawful.13 The Board specifically disa
timent.”
vowed the
“in-part”
ALJ’s use of the
test
Wright proving employer clearly has the burden of Company argues, is in- consistent a legitimate discharge. with the law of it had reason for the the Third Circuit Appeals challenge Court of expressed The does not the ade Edgewood Nursing Center, N.L.R.B., prima supra, quacy Inc. of the General Counsel’s facie Gould, Rather, Inc. v. supra. Company argues The lan- case. it met guage used in these cases possibly proof (petitioner’s could its burden of brief at pretextu- reprinted The cases have been 14. The Board’s decision and order is referred to as al, mixed, or dual motive cases. A. 427-30. 13. See ALJ’s decision at A. 410.
209
however,
Company’s dispatch policy purportedly re
Board,
12-13).
reached the
The
who
been absent
Company quires
employee
has
conclusion and held
contrary
e.,
proof,
(“booked
“reported
off” or
off
carry its burden of
/.
himself
had failed to
sick”)16
availability
to call in his
to work.
Company’s prоffered excuse was
that
Company,
employee
if the
According to the
legitimate.15
days
three
availability
fails
call in his
for
question
presented
thus
is
The
absence,
deemed to have
after an
he is
supports the
whether substantial evidence
6(a).
voluntarily quit under Work Rule
that the
“has
Board’s conclusion
Company argues
The
that because Stief
that
it
presented persuasive
evidence
availability
to call in his
for the three
failed
for
discharged
would have
reasons
absence,
days after
5
he was
his October
protected
other than his
activities.”
[Stief’s]
pursuant to Work Rule
properly discharged
Bd.,
Corp. v. Labor
Universal Camera
Work
6(a).
Company emphasizes
The
that
474, 488,
464,
did not discharge pursuant to Work present may one employer. be unfair to the 6(a). Rule Inc., In Roadway Express, 145 N.L.R.B. justifies Substantial evidence the Board’s (1963), it the Board held that would nоt conclusion that violated where, defer to the absence of addition (3). it admits member, impartial appears from knew of Stief’s efforts to have the union evidence that the arbitration committee membership reject the proposed contract. was constituted with whose inter- members The Company insisted that Stief call in his aligned against appeared ests to be availability after his pur- October absence grievant. grievant If the had won at arbi- suant procedure to a call-in that was not would, course, known to tration Stief and had not been consistent- ly employer followed have been When the past. in the reinstated. however, Dispatcher arbitration, Hansen won at the Board re- discipline threatened to Stief if he counting proceeding attended the of the fused to defer. arbitration ballots on October frustrating, costly This threat consti- was thus a for the hurdle *10 employer, employer compelled participate proceeding in a in which it really
could not win. principled judg- make
It is difficult griev-
ments as to when the interests diverge justify
ant so as to and the union award, deferring to an arbitration but day
in a when are often hostile employees leadership,
to their union and its refusing
Board’s to defer when
there “appearance” is the of bias on an may
arbitration committee threaten the va-
lidity of many the decisions of committees lack a neutral member. The Board
may fully not have considered all of the
possible Roadway ramifications of the Ex-
press applied doctrine as to a case such as present Perhaps one. will Board doctrine,
want reconsider which is
designed fairness, promote to assure that operate does not in a way that would
unfair party. to one
In re GRAND JURY PROCEEDINGS
HARRISBURG GRAND JURY 79-1.
Appeal of Robert McNABB.
No. 80-2548.
United States Appeals, Court of
Third Circuit.
Submitted Under Third Circuit Rule
12(6) May Sept.
Decided