706 F.2d 972 | 3rd Cir. | 1983
Lead Opinion
OPINION OF THE COURT
On May 21, 1982, the National Labor Relations Board (“Board”) issued a decision and order holding that United Parcel Service, Inc. (“UPS”) had committed certain unfair labor practices under the National Labor Relations Act, 29 U.S.C. §§ 151-169 (1976 & Supp. V 1981) (“Act”). The Board held that UPS had violated section 8(a)(1)
This action is a petition for review and a cross-application for enforcement of that order. For the- reasons stated herein we will enforce in part, and we will remand in part.
I
A. Driver Robert Bowlds
Bowlds was originally hired by UPS in 1965. For the six or seven years prior to the instant unfair labor proceeding, he worked as a “feeder driver” out of UPS’s Owensboro, Kentucky facility.
Bowlds had a running history of disputes with UPS. On April 24, 1978, UPS discharged Bowlds, assertedly because he falsified his timecard and overextended his rest breaks.
Both the May 24, 1978 final warning letter and the August 4, 1978 discharge were the subject of an unfair labor practice proceeding brought by the General Counsel against UPS. The Board held that those actions violated sections 8(a)(1) and 8(a)(3) of the Act. United Parcel Service, Inc., 252 N.L.R.B. 1015, 1019 (1980), enforced, 677 F.2d 421 (6th Cir.1982) (“ United Parcel Service f’).
UPS claims that in July and August of 1979 it again became concerned about Bowlds’ consistent late arrival at the Ow-ensboro Center. The Company decided to observe Bowlds on the night of August
B. Driver David Perkins
Perkins has been employed at UPS’s Campbellsville, Kentucky facility as a feeder driver since 1971 and, like Bowlds, has actively been involved with union activity. He testified that he had openly distributed UPSurge and PROD material at Campbells-ville several times, and that he had collected money and solicited signatures for the class action suit brought by Bowlds against UPS.
On February 14, 1979, Perkins filed a grievance protesting UPS’s alleged failure to assign him sufficient work. That grievance was resolved against him. App. at 90a; 648a — 50a. Perkins testified that two weeks later he had a conversation with Tom Mouser, the Campbellsville Terminal Manager, about obtaining some work pants. According to Perkins, Mouser stated: “Perkins, we’re trying to figure out a way to fire your ass anyway. We won’t have to get you any.” App. at 652a. That statement was made in front of two other employees, Bobby Pierce and Eddy O’Banion, who both corroborated Perkins’ version of events. App. at 150a; 224a-25a, 234a-35a, 652a-53a.
Perkins also stated that in February or March of 1979, Mouser approached him at the Campbellsville facility and brought up the subject of UPSurge. He testified:
[Mouser] asked me if I had been distributing some papers around Campbells-ville, and I said yes. And I told him we had the right to as long as the man wasn’t on the clock working.
And he responded, “Well, I’d rather you didn’t do it.”
App. at 643a. At the time Mouser made his statement, Perkins was not distributing literature. Perkins testified that despite Mouser’s statement, he continued to distribute UPSurge material at least two more times- over the next few months. App. at 644a — 15a.
UPS contends that throughout the summer of 1979, Perkins habitually returned late to Campbellsville after completing his regularly scheduled route. In conjunction with its observation of Bowlds, UPS decided to observe Perkins on the night of August 27-28. Company supervisors testified that they followed Perkins to a rest stop where they observed him overstay his rest break. On the next evening Perkins’ supervisor told him that he was suspended for overextending his rest break and falsifying his timecard. On August 30, 1979, Perkins was formally told that he was being discharged.
C. The Grievance Proceedings
Both Bowlds and Perkins filed grievances over their discharges under the grievance procedures in their union contract. An initial meeting was held on Bowlds’ grievance on September 11, 1979. Bowlds’ grievance was read into the record,
Perkins’ grievance was also initially heard on September 11, 1979. A UPS supervisor testified that Perkins had been observed taking a thirty-two minute break although his timecard only reflected a fifteen minute break. Perkins’ grievance was read,
II
Following their discharges both Bowlds and Perkins filed charges with the Board’s Regional Director claiming that UPS had unlawfully discriminated against them because of their protected activities. On October 24, 1979, the Regional Director issued a consolidated complaint charging UPS with unfair labor practices. The complaint alleged that UPS had violated section 8(a)(1) of the Act by unlawfully promulgating and enforcing a rule prohibiting distribution of UPSurge’s written material on UPS property.
An Administrative Law Judge held hearings and issued a decision on October 3, 1980. He initially determined that the General Counsel’s complaint should not be dismissed on Spielberg deferral grounds.
Turning to the discharges of Bowlds and Perkins, the ALJ found not credible the supervisors’ testimony that Bowlds and Perkins had overextended their breaks. App. at 160a, 162a. He determined that, as a general matter, late returns by Bowlds and Perkins were due to delays in getting out of other terminals. Id. The ALJ also found that Bowlds and Perkins had been singled out for “extraordinary surveillance” because of their union activity. Id. While the ALJ did find some discrepancies on the two employees’ timecards, he held that they were of a “minor nature.” App. at 162a.
The ALJ concluded:
In the instant case, I have found that the General Counsel made a prima facie showing sufficient to support the inference that protected conduct was the motivating factor in the suspension and discharges of Bowlds and Perkins, and in my view the Respondent has failed to demonstrate that such actions would have taken place in the absence of the protected conduct. In accordance therewith, the Respondent is in violation of sections 8(a)(1), (3), and (4) of the Act.
App. at 163a.
UPS filed exceptions to the ALJ’s decision on December 12, 1980. On May 21, 1982, the Board issued a decision and order adopting the findings and conclusions of the ALJ. United Parcel Service, Inc., 261 N.L. R.B. No. 134 (1982) (“ United Parcel Service II”). The Board, however, slightly changed the basis for its finding of an 8(a)(1) violation.
In affirming the Administrative Law Judge’s conclusion that Respondent violated Sec. 8(a)(1) of the Act by promulgating, maintaining, and enforcing an unlawfully broad no-distribution rule, we refer solely to the implied restrictions against distribution on nonworking time
which Supervisor Mouser communicated to employee Perkins in a February or March 1979 conversation. We find no need to decide whether Respondent’s written no-solicitation, no distribution rules also violated Sec. 8(a)(1).
Id. at 2 n. 3. The Board specifically upheld the ALJ’s “broad” remedial order that the Company cease and desist “in any like or related manner” from interfering with employees’ section 7 rights. The Board found that the award was warranted because “Respondent has shown a proclivity to violate the Act and has engaged in such egregious and widespread misconduct as to demonstrate a general disregard for the employees’ fundamental Sec. 7 rights.” Id. at 2 n. 4; see NLRB v. Local 483 and Local 11, 672 F.2d 1159, 1168 (3d Cir.1982).
UPS filed a petition to review the Board’s decision on July 8,1982. The Board filed a cross-application for enforcement on August 17, 1982.'
Ill
A. ■ The Section 8(a)(1).Violation — Distribution of UPSurge Literature
UPS contends that we should not enforce the Board’s order holding that UPS violated section 8(a)(1) of the Act. First UPS asserts that Mouser’s statement, relied upon by the Board for its finding of a section 8(a)(1) violation, was not part of the General Counsel’s consolidated complaint nor the basis for the ALJ’s decision. UPS claims that the Board’s “eleventh hour modification” of the issue prejudiced it from properly asserting a defense to the Board’s charges because at the evidentiary hearings it focused its efforts on disproving the alleged written policy rather than on rebutting any alleged individual coercion by Mouser. The Board claims that UPS did have adequate notice of the charges against it. It argues that paragraphs 5(c) and 9 of the consolidated complaint
Both the Administrative Procedure Act and the Board’s own rules require that a complaint properly inform a charged party of any asserted violation. 5 U.S.C. § 554(b)(3) (1976); 29 C.F.R. § 102.15 (1982).
Although the thrust of the original complaint was that UPS’s written policy violated the Act, it specifically referred to the actions Mouser took in March of 1979 to enforce the no-distribution rule. More importantly, UPS had a meaningful opportunity to litigate the issue of whether Mouser actually made the alleged statement or, if made, whether the statement was coercive. On direct examination by UPS, Mouser specifically denied that he had ever made the disputed statement to Perkins. App. at 1015a-16a. In reaching its conclusions, the Board merely accepted the AU’s findings crediting Perkins’ testimony over Mouser’s. United Parcel Service II, 261 N.L.R.B. No. 134, at 2 n. 2; see app. at 156 n. 14. Based on this record we find that UPS had sufficient notice about Mouser’s statement to defend adequately the charge that that statement constituted a section 8(a)(1) violation under the Act and therefore was not unduly prejudiced by the Board’s holding, cf. Soule, 652 F.2d at 1074 (test is one of fairness under the circumstances of each case).
UPS’s second argument against enforcement is that the Board’s conclusion that Mouser’s statement violated section 8(a)(1) of the Act is not supported by substantial evidence. UPS asserts that Mouser’s “innocuous” statement should not be considered coercive because the utterance was extremely short and because there is no evidence that it was made in a threatening tone.
Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7] of this title.” 29 U.S.C. § 158(a)(1) (1976). To establish a violation of that section, “it need only be shown that ‘under the circumstances existing, [the employer’s conduct] may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.’ ” United States Steel Corp. v. NLRB, 682 F.2d 98, 101 (3d Cir.1982) (emphasis added) (quoting NLRB v. Armcor Industries, Inc., 535 F.2d 239, 242 (3d Cir.1976) (quoting Local 542 v. NLRB, 328 F.2d 850, 852-53 (3d Cir.), cert. denied,
In affirming the ALJ’s determination that UPS violated section 8(a)(1) of the Act, the Board relied solely on Mouser’s statement to Perkins that he would “rather not” have Perkins distribute literature. 261 N.L. R.B. No. 134, at 2 n. 3. We have recently held that where an incident of alleged interference with the distribution of literature is trivial and isolated and only imposes a negligible burden on employees’ rights, it will not rise to the level of a violation of the Act. Graham Architectural Products Corp. v. NLRB, 697 F.2d 534, 542 (3d Cir.1983). The Board argues that Mouser’s statement is not an isolated comment but rather part of a long-standing pattern of restraining the distribution of literature during nonworking time. It asserts that when Mouser’s statement is examined against the “backdrop of .. . hostility” to section 7 rights, it should be considered coercive and therefore violative of the Act.
Viewing all the circumstances, we hold that substantial evidence exists in the record to uphold the Board’s finding of a section 8(a)(1) violation. It is true that Mouser’s statement, on its face, could be considered noneoercive. Perkins, however, had recently filed a grievance against Mouser and UPS. App. at 648a-50a; see app. at 90a. On February 28, 1979, in the presence of two other employees, Mouser said to Perkins “we’re trying to figure out a way to fire your ass.” App. at 150a; 652a. The ALJ took official notice that the Board had previously determined that UPS and its supervisors had engaged in various unfair labor practices, in connection with UPS’s opposition to employee involvement with UPSurge. App. at 142a-43a. In light of these facts we think that the record supports the Board’s finding that Mouser’s statement tended to impose unlawful restrictions on Perkins’ right to distribute literature.
B. The Sections 8(a)(1), 8(a)(3), and 8(a)(4) Violations — The Discharges of Bowlds and Perkins
UPS urges us to reject the Board’s conclusion that the discharges of Bowlds and
1. Deferral to the Grievance Proceedings
In a series of decisions beginning with Spielberg Manufacturing Co., 112 N.L. R.B. 1080 (1955), the Board has ruled that it will defer to an arbitrator’s award if four criteria are met: (1) the proceedings have been fair and regular; (2) the parties agreed to be bound; (3) the decision was not “clearly repugnant” to the purposes and policies of the Act; and (4) the arbitration has decided the statutory issue currently under review. Suburban Motor Freight, Inc., 247 N.L.R.B. 146 (1980); Collyer Insulated Wire, 192 N.L.R.B. 837 (1971); Raytheon Co., 140 N.L.R.B. 883 (1963), enforcement denied on other grounds, 326 F.2d 471 (1st Cir.1964); see Hammermill Paper Co. v. NLRB, 658 F.2d 155, 159-61 (3d Cir.1981), petition for cert. filed, 50 U.S.L.W. 3622 (U.S. Jan. 29,1982) (No. 81-1438); NLRB v. General Warehouse Corp., 643 F.2d 965, 968-71 (3d Cir.1981); NLRB v. Pincus Brothers, Inc. Maxwell, 620 F.2d 367 (3d Cir.1980); cf. Schaefer v. NLRB, 697 F.2d 558 (3d Cir.1983) (Board deferral to private settlement agreements).
We find that the Board properly exercised its jurisdiction over the unfair labor practice proceedings. We have previously held that “for the Board’s deferral policy not to be one of abdication, the Board must be presented with some evidence that the statutory issue has actually been decided.” General Warehouse, 643 F.2d at 969 (footnotes omitted). The instant record is devoid of any such evidence. There is nothing to indicate that the statutory issue was fully presented to or considered by the grievance panels.
UPS contends that even if the Board properly refused to defer to the grievance panel’s decision, we should not enforce the Board’s order. It asserts that the General Counsel, when presenting his case to the ALJ, failed to meet his threshold burden of making a prima facie showing of unlawful discrimination.
To establish a prima facie case, the General Counsel must present sufficient evidence to support the inference that protected conduct was a motivating factor in the employer’s decision. Behring International, Inc. v. NLRB, 675 F.2d 83, 88, 90 (3d Cir.1982), petition for cert. filed, 51 U.S. L.W. 3199 (U.S. Sept. 13,1982) (No. 82-438). As the Supreme Court explained in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981):
[T]he prima facie case “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff’s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.
Id. at 254, 101 S.Ct. at 1094 (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978)) (footnote omitted). The burden of establishing a prima facie case is not onerous. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
We do not think that the ALJ erred in holding that the General Counsel established a prima facie case of unlawful discrimination. The General Counsel produced evidence that UPS knew that Bowlds and Perkins were involved in widespread protected activity, including organizing efforts for UPSurge. The General Counsel also presented evidence that Bowlds and Perkins, at the time of their discharges, were involved in another unfair labor practice proceeding concerning alleged discrimination for union activity. Bowlds and Perkins both testified that, contrary to reports by UPS’s supervisors, they did not overextend their breaks on the night of August 27-28. Evidence corroborating their testimony was introduced by the General Counsel.
3. The Burden of Proof Issue
UPS’s final contention is that, assuming establishment of a prima facie case, the ALJ improperly shifted to UPS the burden of proving that Bowlds and Perkins would have been discharged regardless of their protected activity. In Behring International, Inc. v. NLRB, we outlined the appropriate burdens of going forward and of proof to be applied in a discriminatory discharge case.
Under our formula, once the General Counsel has established a prima facie case of discriminatory discharge, the employer should rebut this with evidence of a legitimate business reason for its action. The ultimate burden of proof does not shift from the General Counsel and does not devolve upon the employer at any stage. Therefore, no violation may be found unless the Board determines that the General Counsel has proved by a preponderance of the evidence that the employer’s anti-union animus was the real cause of the discharge.
675 F.2d 83, 90 (3d Cir.1982), petition for cert. filed, 51 U.S.L.W. 3199 (U.S. Sept. 13, 1982) (No. 82-438); see NLRB v. Blackstone, 685 F.2d 102, 105 (3d Cir.), petition for cert. filed, 51 U.S.L.W. 3512 (U.S. Dec. 30, 1982) (82-1105). UPS argues that the Board failed to apply that test when it determined that UPS had violated the Act by discharging Bowlds and Perkins. UPS contends that the Board instead applied its
We agree that the ALJ and the Board misallocated the burden of persuasion in the instant case. In his decision the ALJ clearly shifted to UPS the burden of proving that the discharges would have taken place in the absence of any protected conduct. App. at 163a. The Board specifically affirmed the ALJ’s rulings, findings, and conclusions. Because the ALJ’s and the Board’s decisions are in contravention of our holding in Behring, we cannot enforce the Board’s order and must remand to the Board for reconsideration. Blackstone, 685 F.2d at 106; Behring, 675 F.2d at 91.
IV
We will vacate the Board’s order reinstating Bowlds and Perkins and awarding them backpay and other benefits, and we will remand the case for further proceedings. In all other respects we will enforce the Board’s order.
. As part of its operation, UPS employs feeder drivers who drive fixed delivery routes between UPS facilities. Those drivers operate out of a home location and shuttle packages to and from specific distribution depots. At those distribution points the packages are resorted and then loaded on to other UPS trucks for further delivery.
. At all times relevant to this action, Teamsters Local 89 was the exclusive bargaining agent for the Company’s employees. App. at 142a n. 1.
. In the instant case the ALJ found that employee activity on behalf of PROD and UPSurge constituted concerted protected activity under the Act. App. at 143a.
. In addition in Márch of 1977, Bowlds initiated a class action suit against UPS alleging that UPS had violated a Kentucky statute requiring employers to grant periodic ten-minute rest breaks.
. For UPS’s distribution systems to function properly, all feeder drivers must keep to a preset schedule. Departure times, rest stops, and arrival times are ail predetermined to ensure the continuous and efficient flow of packages from terminal to terminal. Company policy requires that a driver’s timecard accurately reflect the amount of time that he spends on the road and on his breaks. App. at 832a-36a; see app. at 145a n. 4, 158a n. 16; 366a-68a, 408a-10a, 980a-81a.
. In its decision the Board noted several instances where Company supervisors indicated shortly after the issuance of the May 24, 1978 warning letter that they were going to “get” Bowlds. United Parcel Service I, 252 N.L.R.B. at 1021.
. UPS has a policy of putting under observation drivers who are suspected of excessive delays. , In the past ten years several feeder drivers have been placed under observation for allegedly overstaying their rest breaks. A driver will not be put under observation, however, until the situation has been discussed between the driver and his supervisor and until after the driver has had an opportunity to remedy the problem. App. at 144a & n. 3; 864a-66a.
. Bowlds’ grievance states [sic]:
On Aug 28th I was called to work early at 7:00 PM and told by Ben Cissel that I was suspended for overextending my break and falsifying a time card. Cissel said he could not give me the details and date therefore denying me a chance to prove myself innocent. I[t] was not until Aug 31st at 9:00 AM that I was told that I was terminated and questioned about my 15 min. breaks the night of Aug 27th. I think the 'Company withheld the details of this charge against me as long as possible to make it harder to defend myself. I did not overextend my break or falsify. Anytime I stoped my truck, other than the 15 minute break shown on my card, was because I was very sleepy and had to pull off the road long enough to get myself woke up so I would not have an accident. Although I could get myself awake and alert for short periods I continued to be sleepy & drowsy, the rest of the night. I have not been late with my load nor have I ever missed a scheduled days work.
But once again I think I was terminated for my union activities, union related activities*976 and my direct involvement in the class action suit to get the company to comply with state law on 10 minutes Rest Periods. I think the company singled me out to build a case against me in the NLRB hearing set for Sept Uth.
I ask the Union treat me equal to all the other feeder drivers and see the Company has not. I ask that I be reinstated fully with pay for all time lost, and be allowed to do an honest and dependable job.
App. 120a-21a (emphasis in original).
. Perkins’ grievance states:
On the night of Aug. 28, 1979 I was suspended for aledgedly extending my brake and falsifying my time card. I was given no time or dates of this occurance to defend myself. On Aug. 30, 1979 I was called to work at my regular start time only to be fired for the above acuations. They did not have the exact times they recorded me but only the length I was there which was 32 minutes and a lie.
The above charges are degrading and have damaged my Employment Record. I want to be compensated for all time off and all documents of this occurance stricken from my records.
App. at 86a.
. Employees have the right to distribute union literature in nonworking areas of the employer’s premises during nonwork periods. Employers may not interfere with that right except to the extent necessary to maintain production or discipline. See Eastex, Inc. v. NLRB, 437 U.S. 556, 570-75, 98 S.Ct. 2505, 2514-17, 57 L.Ed.2d 428 (1978); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-05, 65 S.Ct. 982, 987-89, 89 L.Ed. 1372 (1945).
. Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955).
. Mouser denied that he ever made that statement, but the ALJ found him not to be a credible witness. Both the Board and this court are generally bound by credibility determinations made by the ALJ. See Behring International, Inc. v. NLRB, 675 F.2d 83, 86 (3d Cir.1982), petition for cert. filed, 51 U.S.L.W. 3199 (U.S. Sept. 13, 1982) (No. 82-438); Standard Dry Wall Products, Inc., 91 N.L.R.B. 544 (1950), enforced, 188 F.2d 362 (3d Cir.1951).
. Paragraph 5 of the Order Consolidating Cases, Consolidated Complaint and Notice of Hearing reads:
(a) On of about an unknown date in March, 1979, the Respondent at its facility promulgated and since said date has maintained the following rule:
No distribution of UPSurge written material on the Respondent’s property at any time.
(b) The Respondent promulgated the rule described above in subparagraph 5(a) in order to discourage its employees from joining, supporting or assisting UPSurge, an organization of employees which is designed to inform and influence the Respondent’s em*978 ployees concerning the actions a'nd policies of the Respondent and Teamsters Local 710 and Teamsters Local 89 with respect to wages, hours, and working conditions.
(c) On or about an unknown date in March, 1979, the Respondent by its officer and agent Tom Mouser, maintained and enforced the rule described above in sub-paragraph 5(a) by prohibiting its employees from passing out UPSurge materials at anytime while they were on company property. Paragraph 9 reads:
By the acts described above in paragraph 5 through 8, and by each of said acts, the Respondent did interfere with, restrain, and coerce, and is interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby did engage in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.
App. at 2a-4a (emphasis added).
. General principles of due process also require that persons charged with unlawful conduct be given prior notice of the charges and an opportunity to be heard in defense before the Government can take enforcement action. Huck Mfg. Co. v. NLRB, 693 F.2d 1176, 1182 (5th Cir. 1982); Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1073 (1st Cir.1981).
. We agree with the ALJ’s statement that “the mere fact that the tone of the conversation may have been friendly or conciliatory does not, of course, erase the implied restrictions by Mouser.” App. at 157a.
. In its opening brief and in its reply brief, UPS raised a third argument against enforcing the Board’s order. It asserted that the Board’s “re-characterization” of the § 8(a)(1) violation presented a statute of limitations problem under § 10(b) of the Act, 29 U.S.C. § 160(b) (1976), because Mouser’s alleged statement occurred more than six months prior to the filing of the unfair labor practice charge.
On December 6, 1982, the Board filed a motion to strike UPS’s statute of limitations defense because it had not been properly presented to the Board. See 29 U.S.C. § 160(e) (1976). In response to the Board’s motion, UPS argues that it did raise the issue, pointing to one sentence in its brief submitted in support of its exceptions to the ALJ’s decision. The Board’s regulations, however, state that a matter must be included in a party’s exceptions before it will be considered by the Board. See 29 C.F.R. § 102.46 (1982); see also 29 C.F.R. § 102.34(b) (brief filed in support of exceptions not included in record of case). UPS concedes that it did not raise the issue in its formal exceptions, and thus under § 10(e) of the Act and the Board’s regulations, it is barred from raising that issue before us.
UPS further argues that even if it did not meet the requirements of § 10(e), it should not be precluded from raising the statute of limitations issue because “the issue was not interjected into the litigation until the NRLB’s final order.” Cf. NLRB v. Richards, 265 F.2d 855, 862 (3d Cir. 1959) (party not barred from raising before court issue of law initially created by the Board’s order). The ALJ’s holding, however, specifically based the § 8(a)(1) violation on activity in February and March of 1979. App. at 157a. Thus the statute of limitations issue could have been raised by UPS before the Board in response to the ALJ’s finding of when a violation occurred. UPS’s failure to raise that issue before the Board precludes our review at this stage.
. Section 8(a)(3) of the Act states:
It shall be an unfair labor practice for an employer—
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization:
29 U.S.C. § 158(a)(3) (1976).
. Section 8(a)(4) of the Act states:
It shall be an unfair labor practice for an employer—
(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this sub-chapter;
29 U.S.C. § 158(a)(4) (1976).
. The first three parts of the Board’s test were originally formulated in Spielberg. 112 N.L. R.B. at 1082. The fourth element, actually “a prerequisite to the Spielberg standards,” General Warehouse, 643 F.2d at 969 & n. 12, was articulated in Raytheon Co., 140 N.L.R.B. 883 (1963), enforcement denied on other grounds, 326 F.2d 471 (1st Cir.1964), as a separate and distinct factor. NLRB v. Motor Convoy, Inc., 673 F.2d 734, 735 & n. 3 (4th Cir.1982); see Professional Porter & Window Cleaning Co., 263 N.L.R.B. No. 34 (1982). See generally NLRB v. Babcock and Wilcox Co., 697 F.2d 724 (6th Cir.1982); NLRB v. South Cent. Bell Tel. Co., 688 F.2d 345 (5th Cir.1982), petition for cert. filed, 51 U.S.L.W. 3485 (U.S. Dec. 16, 1982) (No. 82-1016); Liquor Salesmen’s Union Local 2 v. NLRB, 664 F.2d 318 (2d Cir.1981), cert. denied, 456 U.S. 973, 102 S.Ct. 2236, 72 L.Ed.2d 847 (1982); NLRB v. Designcraft Jewel Indus., 675 F.2d 493 (2d Cir.1982); Pioneer Finishing Corp. v. NLRB, 667 F.2d 199 (1st Cir.1981), petition for cert. filed, 50 U.S.L.W. 3949 (U.S. May 22, 1982) (No. 81-2162); Murphy & Sterlacci, A Review of the National Labor Relations Board’s Deferral Policy, 42 Ford. L.Rev. 291 (1973); Note, Spielberg Reconsidered — Problems in Application and Content of the Deferral Doctrine, 49 Ford.L.Rev. 1116 (1981); Note, Limiting Deferral Under the Spielberg Doctrine, 67 Va.L.Rev. 615 (1981).
. See William E. Arnold Co. v. Carpenters Dist. Council, 417 U.S. 12, 16-17, 94 S.Ct. 2069, 2072, 40 L.Ed.2d 620 (1974); Carey v. Westinghouse Elec. Corp., 375 U.S. 261, 270-72 & n. 7, 84 S.Ct. 401, 408-9 & n. 7, 11 L.Ed.2d 320 (1964); Hammermill, 658 F.2d at 159 n. 8; General Warehouse Corp., 643 F.2d at 968 n. 11.
. UPS argues that because Bowlds’ grievance mentions his union activities and because it was read into the record at every stage of the proceedings, the grievance panel was sufficiently apprised of the statutory issues to require deference by the Board under Spielberg.
We have stated:
The Board’s fourth requirement will be deemed met “[i]f there is substantial and definite proof that the unfair labor practice issue and evidence were expressly presented to the arbitrator and [that] the arbitrator's decision indisputably resoIve[d] the [unfair labor practice] issue....” Stephenson, 550 F.2d [535] at 538 n. 4 (emphasis added). If “the arbitrator’s decision is ambiguous as to the resolution of the statutory issue, [we must hold that] the ‘clearly decided requirement has not been met.’ ” Id.
General Warehouse, 643 F.2d at 969 n. 16 (quoting Stephenson v. NLRB, 550 F.2d 535 (9th Cir.1977)); see Hammermill, 658 F.2d at 160-61. Mere passing reference in Bowlds’ grievance to his protected activities is not “substantial and definite proof” that the statutory issue was “indisputably resolvefd].”
We note that the Board’s refusal to defer in the instant case is consistent with its treatment of the same issue in United Parcel Service I. In that decision the Board stated:
Because the Union’s failure both to advocate Bowlds’ claim that he was discharged for dissident activities and to present evidence on that claim, we find deferral inappropriate. In these circumstances, it is not enough that Bowlds’ grievance was read at each step of the proceeding, even though in the grievance Bowlds contended that he was discharged for his “union activities and involvement in a class action suit.. .. ” The mere presentation of the contention, without more, cannot support deferral.
252 N.L.R.B. 1015, 1016 (1980) (footnote omitted). The Sixth Circuit affirmed the Board’s ruling on the Spielberg issue. NLRB v. United Parcel Service, Inc., 677 F.2d 421, 422 (6th Cir.1982).
. Because the grievance panels did not consider or resolve the unfair labor practice issues, the ALJ and the Board did not have to consider the other Spielberg criteria when deciding whether to defer. General Warehouse, 643 F.2d at 969; Professional Porter & Window Cleaning Co., 263 N.L.R.B. No. 34, at 5 n. 3 (1982). Accordingly we do not reach the Board’s other argument that the arbitrator’s decision as to Bowlds was “clearly repugnant” to the Act.
. UPS argues that the arbitrator’s decision to uphold Bowlds’ discharge implicitly decided that UPS did not discriminate in violation of the Act. The collective bargaining agreement explicitly prohibits “any discrimination against any employee because of union membership or activities.” App. at 29a. Thus UPS argues that the decision to uphold Bowlds’ discharge “necessarily” was a decision holding that the Company had not discriminated against Bowlds because of his protected activity.
While an arbitrator’s award may “evince resolution of unfair labor practice issues,” Hammermill, 658 F.2d at 160, a finding favorable to the employer does not automatically dispose of a claim of discriminatory discharge in violation of the Act. Id.; General Warehouse, 643 F.2d at 969 & n. 13. When no evidence of protected activity is presented to the arbitrator and the arbitrator’s decision makes no mention of statutorily protected rights, we find it difficult to conclude “that the arbitrator considered] the statutory issue and rule[d] on it or all the facts required to decide it.” General Warehouse, 643 F.2d at 969 & n. 17. But cf. Motor Convoy, 673 F.2d at 736 (based on the evidence presented to the arbitration panel, inherent in its decision was a resolution of the question of whether employee was fired for protected union activities).
. App. at 247a-49a, 275a, 278a, 472a-76a, 529a-31a, 631a.
. Note that in Behring we approved that part of the Board’s Wright Line opinion which placed the initial burden on the General Counsel to establish a prima facie case of unlawful discrimination. We disagreed with the Board, however, that once a prima facie case is shown the burden of persuasion shifts to the employer. Behring, 675 F.2d at 90; see Blackstone, 685 F.2d at 105. We emphasized the. importance of the procedural aspects of a discriminatory discharge case. We stated:
From a practical standpoint, it is unlikely that the decision in many cases will turn on whether the employer’s burden is characterized as being one of persuasion or production. Nevertheless, as the Board recognized in Wright Line, 251 N.L.R.B. at 1087, “[t]his distinction is a crucial one since the decision as to who bears this burden can be determinative.” We think that fewer errors will result if the distinction is properly observed.
Behring, 675 F.2d at 90 (footnote omitted).
The Supreme Court has recently granted certiorari in NLRB v. Transp. Management Corp., 674 F.2d 130 (1st Cir.) (per curiam), cert. granted, -U.S.-, 103 S.Ct. 372, 74 L.Ed.2d 506 (1982), to resolve the conflict between the Board and various courts of appeals on the burden of proof issue.'
Concurrence in Part
concurring and dissenting.
I agree with the majority that because the Board improperly allocated the burden of proof in determining that the discharges of Bowlds and Perkins were discriminatory, the case must be remanded for further consideration of this charge. But I believe that the majority has erred in its separate holding that United Parcel Service (UPS) violated section 8(a)(1) of the Act by its overly broad rule against the distribution of union literature. The Company has raised an important statute of limitations challenge to the Board’s finding of this unfair labor practice, and I think this challenge also warrants further consideration on remand.
The Board determined that UPS violated section 8(a)(1) of the Act entirely on the basis of the incident in which Supervisor Mouser told employee Perkins that “I’d rather you didn’t” distribute literature on company property. The testimony indicated that this statement was made sometime in February or March 1979. Since the Administrative Law Judge had found a violation of section 8(a)(1) under a different theory, he made no finding as to precisely when Mouser’s statement was made. Yet the date of the statement became a crucial item of information under the Board’s theory of the case. Section 10(b) of the Act precludes the Board from issuing a complaint unless formal charges were filed with the Board within six months of the alleged unfair labor practice. 29 U.S.C. § 160(b). Because Perkins filed his charge on September 12, 1979, the General Counsel could only issue a complaint concerning events taking place after March 12, 1979. Thus, section 10(b) would require the Board to ascertain precisely when the Mouser-Perkins conversation occurred before the conversation could serve as the basis of an unfair labor practice finding. The Board did not consider this problem in making its decision.
The majority disposes of this statute of limitations defense on the ground that it was not adequately raised before the Board,
To my mind, this is an unduly technical and unreasonable disposition of this issue. The majority refers to regulations of the Board requiring parties to include in their exceptions all matters that are to be argued before the Board, and limiting the brief to matters within the scope of the exceptions. See 29 C.F.R. § 102.46. It is undeniable, however, that the Board was informed of the statute of limitations issue.
We have previously held that a technical failure to comply with the Board’s procedural rules governing objections will not bar an employer from making his argument to the court of appeals so long as the Board was “adequately appraised” of the employer’s position. NLRB v. Capital Bakers, Inc., 351 F.2d 45, 48 (3d Cir.1965). See also NLRB v. Blake Construction Co., 663 F.2d 272, 283-84 (D.C.Cir.1981) (“We do not think section 10(e) requires such a triumph of technical pleading over fundamental fairness.”). Especially in the instant case, where the Board itself saw fit to reformulate the section 8(a)(1) issue at the last minute,
I therefore think that the statute of limitations issue was adequately raised below and may be considered by the court on appeal.
. The Administrative Law Judge found a continuing violation of section 8(a)(1) arising out of a posted work rule pertaining to distribution of literature in the plant, and apparently viewed Mouser’s statement as simply one instance of the implementation of this work rule. The Board, however, relied solely on Mouser’s statement to Perkins as the basis for the unfair labor practice finding.
. The Company maintains that, assuming it did not adequately meet the requirement of section 10(e) that the statute of limitations issue be specifically raised before the Board, it should be excused for not having done so, because it was only when the Board reformulated the position of the ALJ that the statute of limitations issue became crucial. This argument might have had some merit, were it not for the Supreme Court’s recent decision in Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665, 102 S.Ct. 2071, 2083, 72 L.Ed.2d 398 (1982), where the Court suggested that the section 10(e) bar applies even where an issue is injected into the proceedings by the Board’s decision, since the opposing party still has the option of filing a motion for reconsideration with the Board. But, as noted above, I believe that the Company adequately urged its statute of limitations objection before the Board.
. Since the case is being remanded to the Board on the discriminatory discharge issue, no further delay or inconvenience to the parties would be caused by remanding on the 8(a)(1) issue as well.
