On Appeal from the National Labor Relations Board for the Enforcement of an Order NLRB 22-CA-10279
Before: ADAMS and SLOVITER, Circuit Judges and O'NEILL, District Judge*fn*
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.
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.*fn1
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 not 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.*fn2 Another is to adjudicate claims of the employer for financial loss due to negligent or international acts of employees.*fn3
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:
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 on 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.*fn4
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 Down 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,*fn5 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.*fn6 Both the ALJ 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.*fn7
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."*fn8 Deferral to the decision of an arbitrator is appropriate where the arbitrator has decided the questions necessary to resolution of the statutory inquiry*fn9 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 ...