Hawaiian Hauling Service, Ltd. v. National Labor Relations Board

545 F.2d 674 93 L.R.R.M. (BNA) 2952 , 79 Lab.Cas. P 11,763 HAWAIIAN HAULING SERVICE, LTD., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 75-2827. United States Court of Appeals, Ninth Circuit. Nov. 12, 1976. Rehearing En Banc Denied Dec. 30, 1976. Jared Jossem (argued), of Torkildson, Katz & Conahan, Honolulu, Hawaii, for petitioner. Richard Bader, Atty. (argued), N.L.R.B., Washington, D. C., for respondent. Before HUFSTEDLER and WRIGHT, Circuit Judges, and VAN PELT, * District Judge. HUFSTEDLER, Circuit Judge: 1 This appeal presents the question of the proper scope of our review of a National Labor Relations Board ("NLRB") decision 1 refusing to defer to an arbitration award. We conclude that the Board acted within its discretion in refusing to follow the arbitrator's award in this case. 2 The controversy arises from the discharge of Richardson, an employee of Hawaiian Hauling Service, Ltd., ("HHS"), when Richardson called HHS's general manager a liar at a grievance meeting. Before this incident, Richardson had been employed by HHS for 22 years and had served as a Teamsters Union Shop Steward for 14 years. HHS gave Richardson two warning letters in October,…

This appeal presents the question of the proper scope of our review of a National Labor Relations Board (“NLRB”) decision 1 refusing to defer to an arbitration award. We conclude that the Board acted within its discretion in refusing to follow the arbitrator’s award in this case.

The controversy arises from the discharge of Richardson, an employee of Hawaiian Hauling Service, Ltd., (“HHS”), when Richardson called HHS’s general manager a liar at a grievance meeting. Before this incident, Richardson had been employed by HHS for 22 years and had served as a Teamsters Union Shop Steward for 14 years. HHS gave Richardson two warning letters in October, 1973. The first concerned a protracted leave of absence. The second concerned a charge that Richardson had displayed pornographic photographs on his desk in January, 1972, and May, 1973, which were said to have been discovered and ordered removed on October 3,1973, by Rogers, HHS’s vice president and general manager. On October 15, 1973, Richardson and the union business agent met with Rogers and Richardson’s immediate supervisor concerning the warning letters. Richardson contended that Rogers had been aware of the pictures and had…

(dissenting).

I respectfully dissent.

The controlling issue here is whether Richardson’s conduct at the October 15 meeting was protected activity. While impulsive behavior may be protected during grievance proceedings, N.L.R.B. v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965); Crown Central Petroleum Corp. v. N.L.R.B., 430 F.2d 724, 730 (5th Cir. 1970), deliberate falsehoods are not. Owens-Corning Fiberglas Corp. v. N.L.R.B., 407 F.2d 1357, 1365 (4th Cir. 1969); Letter Carriers v. Austin, 418 U.S. 264, 277-78 , 94 S.Ct. 2770 , 41 L.Ed.2d 745 (1974). The inquiry is thus whether Richardson’s conduct was such as to cross the line of protected grievance activity.

In submitting the grievance to arbitration, the parties stipulated that the arbitrator’s decision would contain only his conclusions, and that a formal transcript would not be made of the testimony and arguments presented there. The award upholding Richardson’s termination was made in accordance with the grievance arbitration proceeding established by contract of the parties.

Arbitration enjoys a preferred position in labor law. Congress has declared that “[fjinal adjustment by a method agreed upon by the parties…