National Labor Relations Board v. Wolff & Munier, Inc.

747 F.2d 156, 117 L.R.R.M. (BNA) 2902, 1984 U.S. App. LEXIS 17186

• Court: Court of Appeals for the Third Circuit
• Decided: October 30, 1984
• Docket: 83-3077
• Status: Published

Opinions

OPINION OF THE COURT

O’NEILL, District Judge.

The National Labor Relations Board has filed a petition, pursuant to 29 U.S.C. § 160(e), seeking enforcement of its order of June 21, 1982 against respondent Wolff & Munier, Inc. The Board found respondent in violation of sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3), because it discharged Ralph Campione, Robert Campione and Walter Dowd and because it previously had threatened to discharge Robert Campione and Dowd, all as a result of the three men’s union activities. The Board ordered respondent to cease and desist from its unfair labor practices and to reinstate the Campiones and Dowd with back pay.

Respondent contends, inter alia, that the Board’s order should not be enforced because the Board failed to defer to the decision of a Joint Conference Committee that respondent had the right to terminate the Campiones and Dowd. The Committee is an arbitral body created by the collective bargaining agreement between Local Union No. 24 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, AFL-CIO, of which the Campiones and Dowd were members, and the Mechanical Contractors Association of New Jersey, Inc., of which respondent was a member.

We hold that the reason articulated by the Board for its refusal to defer does not justify the refusal and remand for further proceedings.

I.

Respondent operates the Passaic Valley Sewage Treatment Plant at Newark, New Jersey. Among the workers employed by respondent at this jobsite were approximately thirty plumbers, all members of Local 24, who had been referred through the Union’s hiring hall to Emil LeDoux, respondent’s superintendent.

Ralph Campione was hired in March of 1978 as a journeyman plumber, was made a foreman in the summer of the same year and in June or July, 1979, was promoted to general foreman. Walter Dowd was first hired in August or September of 1979 as a journeyman plumber and was promoted to foreman in June of 1980. Robert Campione was hired as a foreman in May of 1979. As previously noted, the three men were members of Local 24.¹

On August 28, 1980, Local Union 24 held its regular monthly meeting. At that meeting the Campiones and Dowd complained to the Union leadership that work duties normally performed by plumbers at the Passaic Valley jobsite were being performed by members of other craft unions; further, they complained that officials of Local 24 were not doing their job in seeing to it that such plumbing work was performed by members of Local 24.

Soon after the August 28 meeting, LeDoux told Ralph Campione that he was fired. LeDoux explained that he was “sick and tired of the agents coming down on him,” and that he had repeatedly warned Campione to stay away from union politics. Later that day, LeDoux told Robert Campione and Walter Dowd that he would not fire them if they stayed away from “political involvements,” but if they persisted in union politics he had no other choice but to let them go. Still later that day, after hearing from another foreman that they were quitting, Dowd and Robert Campione visited LeDoux and told him they were not planning to quit. LeDoux replied, “I know you’re not quitting, I’m letting you go.”

Thereafter, the three discharged men filed a grievance with the Union, which concluded that they had a legitimate grievance and arranged for a hearing by the Joint Conference Committee. The Committee was created by the collective bargaining agreement and has ten members, five from the contractors’ association and five who are officers of the Union. One of its responsibilities is to supervise and control the operation of the job referral system established by the agreement.² Another is to adjudicate claims of the employer for financial loss due to negligent or international acts of employees.³

Perhaps the principal function of the Committee, and at any rate the one pertinent to disposition of the present matter, is to adjudicate any and all questions or disputes arising between' the parties to the agreement. The agreement states that the Committee’s decision is to be binding on the parties and their respective members:

Section 29

JOINT CONFERENCE COMMITTEE

29.1 The purpose of this agreement is to provide a method by which any and all disputes arising between the parties hereto may be peacefully disposed of, and thereby to prevent strikes and lockouts, to provide for the encouragement of training of new workers in the trade, and to do all things directed towards the establishment and maintenance of high professional standards, the combating of unfair practices and the elimination of unsatisfactory conditions in the trade, without intervention of any other trades. 29.2 For the purpose of carrying out the provisions of this section, the Association and the Union agree that upon any question or dispute arising between the parties hereto, or any of their respective members, no independent action will be taken by either party, but the whole question shall be certified in writing to a Joint Conference Committee as hereinafter provided for, whose decision shall be binding oh the parties hereto, and their respective members. The Committee shall meet and act within 24 hours of the call of either the Association or the Union. In the event of a deadlock, the procedure for arbitration set forth in Section 8.2 shall be applicable.⁴

Pursuant to this provision, and after hearing, the Joint Committee issued the following decision:

As a result of a request from Plumbers Local Union No. 24 Business Manager James McManus a meeting of the above Joint Conference Committee was held on November 5th, 1980 at the office of the Mechanical Contractors Association in East Orange, N.J.

Mr. McManus requested the meeting in that three members of Local 24, Ralph Campione, Robert Campione, and Walter Dowd, believed they were unjustly dismissed at the Passaic Valley Sewage Treatment Plant by their employer, Wolff & Munier, Inc. on September 9, 1980. It should be noted that they had been employed by Wolff & Munier as foremen on the above project and that Ralph Campione had been general foreman. The Conference Committee met as requested and heard testimony from Messrs. Ralph Campione, Robert Campione, and Walter Dowd regarding their alleged dismissal and also heard testimony from Mr. Emil Ladeaux and Francis Chang, Superintendent and Project Manager respectively of Wolff & Munier at the Sewage Treatment project.

At the conclusion of the presentation of the above testimony the committee reviewed and discussed the available evidence and found that there was no substantiation of the charge by the Campiones and Dowd that they were unjustly dismissed. The committee decided that there should be no restriction on an employer terminating a foreman in that it had been the employer’s sole decision to employ the person in question as a foreman. In other words, if he had the right to appoint him he had the right to terminate him. The committee further believes that under the Local 24 — MCA current collective bargaining agreement there is no restriction on the right to terminate any employee whether foreman or not under conditions similar to those occurring in this case.

Thereafter, upon a charge filed by Robert Campione,⁵ the Board issued a Complaint. Hearing was held before an Administrative Law Judge, whose decision was affirmed by the Board. The Board’s decision contained additional comments and rulings of its own.⁶ Both the AU and the Board held that respondent had violated Section 8(a)(1) and (3) of the Act; both declined to defer to the decision of the Joint Conference Committee.⁷

II.

Section 203(d) of the Act, 29 U.S.C. § 173(d), expresses a “national policy in favor of the private resolution of labor disputes through consensual arbitration.”⁸ Deferral to the decision of an arbitrator is appropriate where the arbitrator has decided the questions necessary to resolution of the statutory inquiry⁹ and “(1) the proceedings have been fair and regular; (2) the parties agreed to be bound; and (3) the decision is not ‘clearly repugnant’ to the purposes and policies of the Act.”¹⁰ A refusal of the Board to defer will be overturned only if it has abused its discretion.¹¹

The Board held and now argues that deferral was not required in the present case because there was no evidence that the Joint Conference Committee considered the unfair labor practice issue, that is, the issue whether termination of the three men was due to an anti-union motivation on the part of the Company, which, the Board says, is the crux of a charge under Section 8(a)(3) of the Act.

The Committee, however, considered another issue and that was whether the status of the three men as foremen conferred upon the Company the power to terminate them:

The committee decided that there should be no restriction on an employer terminating a foreman in that it had been the employer’s sole decision to employ the person in question as a foreman. In other words, if he had the right to appoint him he had the right to terminate him.

It is evident from this language that the Committee decided that the Company can hire and fire foremen at will. While the Committee did not use the word “supervisor,” one of the statutory definitions of that word is “any individual having authority, in the interest of the employer ... responsibly to direct” other employees, 29 U.S.C. § 152(11). The collective bargaining agreement provides that the employer has the right to designate the foreman and that the foreman’s duty is to supervise the journeymen.¹² Given this provision, and the language used by the Committee, the Committee may well have decided that the Campiones and Dowd were supervisors. In that event, the three men were not entitled to the protection of the Act. If the Committee did so conclude, it was entitled to end its inquiry at that point and did not need to determine whether employees protected by the Act had been discharged for union activity.

In N.L.R.B. v. A. Duie Pyle, Inc., 730 F.2d 119 (3d Cir.1984), this Court reaffirmed the well-established principle that an error urged by respondent may not be considered by this Court if respondent failed to raise the issue before the Board. This principle is not applicable to the present matter: the AU considered whether he should defer to the decision of the Joint Conference Committee and declined to do so (A-259-260); respondent presented the issue to the Board (A-271-272), which also declined to defer (A-290-291). Indeed, the Board does not even argue that the Company has waived its right to raise this issue, namely, whether the Board should have deferred to the • Committee. The Board addressed this issue on its merits and argues that it “reasonably determined that it would be inappropriate to defer” (Brief, p. 22) because the Committee did not consider the unfair labor practice charge (Brief, pp. 22-24).¹³ The Board appears not to have determined whether the Committee had decided that the Campiones and Dowd were not covered by the Act. If the Committee did so decide, it would be an abuse of discretion for the Board to refuse to defer unless it found that the Committee’s conclusion was deficient in one of the four ways enunciated in Spielberg Mfg. Co., 112 N.L.R.B. 1080 (1955).¹⁴ A principal question before the court is whether the Committee decided that the Campiones and Dowd were supervisors within the meaning of the Act; if the Committee did so decide, the Board’s refusal to defer was an abuse of discretion.

As the dissent itself observed, the term “foreman” does not necessarily mean “supervisor” as that term is defined in the Act. There is some evidence that the Board refused to defer to the Committee after consciously finding that the Committee’s statement that the Campiones and Dowd were foremen who could be fired at will did not constitute a holding on the statutory question. In a footnote, Member Hunter states that he could not support deferral based on an “ambiguously worded Joint Conference Committee award ...” when the employees were discharged for engaging in union activities, which are at the heart of the Act’s protection.¹⁵

This may be taken to be an explanation that the Board did not find the Committee’s award to be a resolution of the statutory inquiry into the supervisory status of foreman, especially when centrally protected activities were threatened. The footnote is ambiguous, however, and we cannot say with confidence that the Board found that the Committee did not consider that statutory issue. The footnote could also mean that that the Board believed that the Committee’s findings on the power of the employer, even if they resolved the statutory inquiry, did so in a way clearly repugnant to the policies of the Act. Since the Campiones and Dowd were discharged for union activities, the Board may have felt that a decision placing their jobs outside of the protection of the Act contravenes the purposes of the Act.

It is clear that the issue of deferral was raised before the Board, and it is clear that the Board refused to defer to the Committee. What is not clear is why the Board chose not to defer to a finding that the employees were foremen and thus could be discharged at will. The Board should be allowed to determine whether the Committee’s findings on the power of the employer over these foremen were a resolution of the statutory inquiry and, if they were, whether those findings were clearly repugnant to the policies and purposes of the Act.

For the reasons stated above, this matter will be remanded to the National Labor Relations Board for further proceedings consistent with this opinion.

1 . Superintendent LeDoux also was a union member, but of a different local, Plumber’s Local No. 2.

2 . A. 302-303.

3 . A. 306.

4 . A. 306-307.

5 . It is not clear whether Ralph Campione also filed a charge, A-l, A-248.

6 . Footnotes 1-4, A-290-291.

7 . A-259-260, A-290-291.

8 . N.L.R.B. v. Pincus Bros. Inc.—Maxwell, 620 F.2d 367, 372 (3d Cir.1980). The section provides, in part: "Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.”

9 . NLRB v. General Warehouse, 643 F.2d 965, 969 (3d Cir.1981); see also Hammermill Paper Co. v. NLRB, 658 F.2d 155, 160 (3d Cir.1981); cert. denied, 460 U.S. 1080, 103 S.Ct. 1767, 76 L.Ed.2d 341 (1983).

10 . N.L.R.B. v. Pincus Bros. Inc.—Maxwell, supra, 620 F.2d at 371-372, restating their standard enunciated by the Board itself in Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955).

11 . Id. at 372.

12 . A-303.

13 . What the Board does assert, properly, is that respondent has waived its right to contend that the Board itself should have determined that the Campiones and Dowd were supervisors as defined in Section 2(11), 29 U.S.C. § 152(11), and thus excluded from the protections of the Act (Brief, pp. 10-12). See Beasley v. Food Fair of North Carolina, Inc., 416 U.S. 653, 94 S.Ct. 2023, 40 L.Ed.2d 443 (1974). The answer to the petition for enforcement concedes that this issue was not raised before the Board. Accordingly, absent extraordinary circumstances not here presented, judicial review of this question is barred by section 10(e) of the Act, 29 U.S.C. § 160(e). If the Board decided the issue (see A-291, fn. 2), review is nevertheless unavailable because no petition for reconsideration was ■ filed. Woelke & Romero Framing, Inc. v. N.L.R.B., 456 U.S. 645, 665-666, 102 S.Ct. 2071, 2082-2083, 72 L.Ed.2d 398 (1982).

14 . See note 10, supra, and accompanying text. There is no question that the parties agreed to be bound by the Committee’s decision. On the other hand, the Board could hold that the Committee’s proceedings were not fair and regular, or that the Committee did not in fact consider the statutory question of the "supervisor” status of Campione and Dowd, or, if the Committee did so find, that that determination was so clearly erroneous as to be repugnant to the Act. The Board has, in the past, refused to defer to an arbitral award when management and the union have a common interest in seeing an employee discharged. This Court has recognized'the propriety of such a decision, see Herman Brothers, Inc. v. NLRB, 658 F.2d 201, 207 (3d Cir.1981). Although the Board in no way indicated that it believed the proceedings of the Committee to have been tainted by union-management collaboration, the facts of this case might suggest that possibility.

15 . (262 N.L.R.B. No. 45, fn. 1).