On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before Pell, Circuit Judge, Markey, Chief Judge,*fn* and Wood, Circuit Judge.
This case is before the court on the petition of Irvin H. Whitehouse & Sons Co. (Whitehouse) to review and set aside a final order of the NLRB (the Board) issued against Whitehouse on September 20, 1980. The Board has cross-applied for enforcement. The Board's decision and order, reported at 252 N.L.R.B. No. 140 (1980), found that Whitehouse had violated § 8(a)(1) of the Labor Management Relations Act, 29 U.S.C. § 158(a)(1), by the discriminatory discharge of and refusal to rehire two employees, and ordered make-whole pay and the posting of appropriate notices. The issue presented by the case is whether the arbitration provision of the parties' collective bargaining agreement was sufficient to create an implied no-strike obligation as to safety disputes.
Whitehouse is a union-shop painting contractor located in Louisville, Kentucky. Its local collective bargaining agreement requires it to enter into and abide by local collective bargaining agreements wherever it performs work. From May to December 1977, Whitehouse was engaged as a subcontractor performing work in El Paso, Illinois. Pursuant to its local collective bargaining agreement Whitehouse entered a Memorandum of Understanding with Painters' Local Union No. 157 which had jurisdiction over the El Paso site.
A. The Collective Bargaining Agreement.
The collective bargaining agreement gives the authority to "adjust disputes and grievances that may arise," and "to interpret this agreement so as to give force and effect to the intent, purpose and meaning of this agreement," to a Joint Local Trade Board (the Trade Board). The contract provides that disputes and grievances shall be referred for resolution first to the Trade Board, and ultimately, should the Trade Board fail to agree, through several steps to final and binding arbitration by a third party. The contract provides for enforcement of the decisions of the Trade Board and arbitrator by assessment of liquidated damages, penalties prescribed by the agreement for particular violations, or, in case of violation by a contractor, by designation of that contractor as an "unfair contractor." The contract also contains an "Occupational Safety Clause," which provides that the parties "will cooperate in the prevention of accidents and in protection and promotion of the safety and health of employees." This clause does not specify penalties for its violation, although other clauses specify fines or prescribe specific corrective action for their violation.
Between May and July 1977, Whitehouse employee Delmar Cook made several safety complaints to Whitehouse's Project Director at the El Paso site, Harold Arnold. Some of these complaints were acted upon and corrected; for example, after Cook complained that ladders did not have rubber shoes to prevent slipping, lifts were brought in to replace the ladders. Cook also complained about the lack of protective gloves after employee Albert Davidson suffered chemical burns on his hands from paint thinner. Arnold originally refused to provide gloves, but when Cook threatened to contact the Union Business Agent, Arnold relented and provided the gloves. Arnold did not remedy the other conditions complained of, which related to fire hazards in the trailer which Whitehouse maintained at the site for use as an office, storage area, and changing and cleanup room for the painters.*fn1
On July 19, Arnold passed out timecards to the employees for them to check the number of hours worked the previous week. Cook noted that he had been credited for only two hours for the day on which he drove Davidson to the hospital for burn treatment. Cook contended that he should have been paid for four hours. Arnold disagreed. Cook refused to sign his timecard. Cook called the Union Business Agent to complain that evening. The Business Agent in turn called Arnold, who remained adamant. Shortly after Arnold informed Cook of this conversation at the site the next day, July 20, Cook told his fellow employees he was ill, and left the job site without informing Arnold.
Before Cook reported for work the next day he filed an OSHA complaint against Whitehouse, based on the uncorrected violations he had previously complained of to Arnold. When Cook reported for work that day, Arnold chastised him for failing to report to him before leaving the previous day. Cook reiterated his complaints about working conditions.
Cook then asserted that he would not work in the unsafe conditions. Davidson agreed with Cook, and the two employees changed from their painting clothes back into their street clothes. Arnold warned them that he would not take them back if they walked off the job, but the employees left the job site. They attempted to return the next day, and on three subsequent occasions, but were refused admittance. Whitehouse subsequently replaced them with two other union painters.
C. Post-Refusal Proceedings.
An OSHRC inspector visited the job site the day after Cook and Davidson walked off the job, and cited Whitehouse for the violations alleged in Cook's complaint, but did not impose a fine. After Whitehouse refused to reinstate the two employees, the Union filed charges with the Trade Board alleging that Whitehouse had refused to correct safety violations at the site, and had violated the contract by failing to accept Cook and Davidson for ...