National Labor Relations Board, Petitioner, v. General Warehouse Corporation, Respondent, 643 F.2d 965 (3d Cir. 1981)

The National Labor Relations Board (hereinafter the "Board") petitions this court for enforcement of its February 14, 1980 order against General Warehouse Corporation (hereinafter the "Company").¹  The Board found General Warehouse in violation of sections 8(a) (1) and (3) of the National Labor Relations Act (hereinafter the "Act")²  for retaliating against its employee, John Coon, for engaging in protected union activities. It therefore ordered respondent, General Warehouse, to cease and desist from its unfair labor practices and to reinstate Coon with back pay. Respondent contends that the Board's order should not be enforced because the Board failed to defer to an arbitrator's award that ruled that there was "just cause" for Coon's dismissal; alternatively, respondent argues that there is insufficient evidence on the record to support the Board's findings. We hold that because the arbitrator's decision addressed only the contractual questions in the dispute and not the statutory issues brought before the Board, it was not an abuse of discretion for the Board to refuse to defer to the arbitrator. We also conclude that there is substantial evidence on the record to support the Board's unfair labor practices findings. Accordingly, we will enforce the Board's order.

FACTS

The events leading to the unfair labor practices in this case began in January, 1978. At that time, General Warehouse's Executive Vice-President, Philip Fine, held a meeting with the Company's employees. He asked the employees to waive their contractual right to bid on work to be performed in a new warehouse.³  John Coon, a warehouseman for General Warehouse, attended the meeting but did not participate in the discussion. After the meeting, Fine approached Coon and asked him to "speak to the men and try to get across to them how important it was that (they) agree to (give) up the bid." Coon declined. He had battled with the Company before in a 1976 campaign to collect contractual wage increases that the employees had been persuaded to waive. When he told Fine that he would again oppose the Company, Fine informed Coon that the Company considered him to be a "troublemaker" and "instigator."

Soon thereafter, in March, 1978, the President of General Warehouse, Michael Goldfarb, called another meeting of the warehouse employees. He told them that due to the high cost of energy and the Company's poor financial condition, he could not afford to pay the 38-cent-an-hour cost of living increase provided for under the collective bargaining agreement. He asked the employees to waive the increase due to take effect on April 1, 1978. Goldfarb said he had owned a company in the past where he had labor trouble, that he had closed the business, and that he could do it again. He also told the employees that if they did not waive the cost of living increase due to them, he would close down the Company and open elsewhere.

At least five employees, including Coon, spoke out against waiving the increase. Coon said that the employees were also suffering from inflation and that they were not to be blamed for the Company's unfavorable position with its competitors. He insisted that Goldfarb live up to the contract he had signed.

Coon continued to voice his opposition to a waiver of the cost of living increase through the end of March. On March 30 or 31, the Company polled the employee units on their position.⁴  The waiver proposal was defeated.

Immediately upon the defeat of the waiver issue, General Warehouse changed its work assignment policy. Ordinarily, General Warehouse would assign employees to unload Wrigley freight cars, an arduous job described as the "least desirable assignment at the plant,"⁵  on a rotational basis. After its waiver issue was defeated, the Company arbitrarily selected the employees for the job. It assigned Coon to the Wrigley work on April 3, 1978 and April 4, 1978. On April 5, 1978, Coon called in sick. He was discharged that same day for excessive absenteeism.

The evidence shows that Coon did not have a model attendance record. At one time, he had been absent 18% of his working days; at another, he was sent a warning that his absence five Fridays out of seven was unsatisfactory. The ALJ in his opinion carefully details Coon's attendance record.⁶  We agree with his conclusion that "(the fact that Coon) was absent a considerable number of times is amply supported by the record." ALJ's Decision at 7, reprinted in Appendix at 224. We also agree, however, and will discuss below, that merely "because justifiable grounds for discharge existed, it does not necessarily follow (that) such was the motivating reason (for the dismissal)." Id.

PROCEDURAL HISTORY

The Union filed a grievance with General Warehouse on behalf of Coon, alleging that his discharge had been in retaliation for his union activities and did not constitute "just cause" under the collective bargaining agreement. In accordance with the collective bargaining agreement, the parties submitted their dispute to arbitration. The arbitrator heard argument on the possible motives for Coon's discharge, but made no finding on whether the discharge was based, even in part, on General Warehouse's hostility toward Coon's union activities. Rather, the arbitrator focused only on Coon's behavior and found that his excessive absenteeism was "just cause" under the collective bargaining agreement for his dismissal.⁷ 

After the arbitrator's decision, Coon filed a complaint with the Board alleging that respondent interfered with the exercise of his section 7 rights⁸  (a section 8(a) (1) violation) and discriminated against him in his tenure and condition of employment (a section 8(a) (3) violation). A hearing was held before an Administrative Law Judge (hereinafter "ALJ") on February 21, 1979. The ALJ, declining to defer to the arbitrator's decision, concluded that Respondent had engaged in the alleged unfair labor practices. Accordingly, he recommended that General Warehouse be ordered to cease and desist from its discriminatory acts and reinstate Coon with backpay. The Board summarily adopted the ALJ's order.

DISCUSSION

Our decision on whether to enforce the Board's order turns on two important issues. First, we must decide whether the Board properly refused to defer to the arbitrator's decision in this case. Second, if we hold that the Board did not abuse its discretion in refusing to defer, NLRB v. Pincus Bros., Inc. Maxwell, 620 F.2d 367, 372 (3d Cir. 1980),⁹  we must determine whether there is substantial evidence on the record to support the Board's finding that respondent violated sections 8(a) (1) and (3) of the Act. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 491, 492-96, 71 S. Ct. 456, 464, 466, 467-68, 95 L. Ed. 456 (1951).

In Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955), the Board set forth its standards for deferring to arbitrators' awards.¹⁰  It stated that it would defer to an arbitrator's award if: (1) the proceedings have been fair and regular; (2) the parties agreed to be bound; and (3) the decision was not "clearly repugnant" to the purposes and policies of the Act.¹¹  Spielberg, 112 N.L.R.B. at 1082. The parties have stipulated to the first two of these requirements. The Board refused to defer because it found that the third requirement had not been met. Although we agree with the Board's conclusion that it was not required to defer in this case, we choose to base our decision on a fourth requirement a prerequisite to the Spielberg standards articulated by the Board in Raytheon Co., 140 N.L.R.B. 883 (1963), enforcement denied on other grounds, 326 F.2d 471 (1st Cir. 1964).

In Raytheon Co., the Board held that it would not defer to an arbitrator's decision if the arbitrator failed to consider and rule on the unfair labor practice issue.¹²  See also Max Factor & Co., 239 N.L.R.B. 804 n.3 (1978) (noting that both the Board and the courts have taken the position that the Board should not defer when the arbitrator has not considered the statutory issues). The Board found that

It manifestly could not encourage the voluntary settlement of disputes or effectuate the policies and purposes of the Act to give binding effect in an unfair labor practice proceeding to an arbitration award which does not purport to resolve the unfair labor practice issue which was before the arbitrator and which is the very issue the Board is called upon to decide in the proceeding before it.

Raytheon, 140 N.L.R.B. at 884, quoting Monsanto Chemical, 130 N.L.R.B. 1097, 1099 (1961).¹³  We agree with the Ninth Circuit that

It is illogical for the Board, which is responsible for resolving the unfair labor practice issue, to defer to a decision by an arbitrator, who is under no duty and indeed may not be particularly predisposed to consider the statutory issue, solely on the basis of a factually unfounded presumption that the arbitrator had considered the issue.

Stephenson v. NLRB, 550 F.2d 535, 540 (9th Cir. 1977).¹⁴  Rather, in order for the Board's deferral policy not to be one of abdication,¹⁵  the Board must be presented with some evidence that the statutory issue has actually been decided.¹⁶ 

In applying the fourth deferral requirement that the arbitrator consider the statutory issue and rule on it or all the facts required to decide it¹⁷  to the facts of the instant case, we find that the Board refused to defer to the arbitrator's decision, not because it disagreed with the arbitrator's finding that excessive absenteeism constituted "just cause" under the collective bargaining agreement for discharge, but because the arbitrator did not rule on whether there may have been other grounds for the discharge.¹⁸  The arbitrator's decision only discussed Coon's poor attendance record and whether his excessive absenteeism constituted "just cause" under the collective bargaining agreement for his discharge. The arbitrator could, and apparently did, make his decision without considering the Company's other possible motives for discharging Coon.¹⁹  These other motives, if found to be discriminatory and the "real cause" of Coon's dismissal, could form the basis of an unfair labor practices charge.

Therefore, we cannot find that the Board abused its discretion by refusing to defer to the arbitrator's award.²⁰  Since the Board did not have the aid of an arbitrator's decision addressing the alleged discriminatory motive, it was required to make a determination itself. We now examine its decision.

The Board found that General Warehouse violated sections 8(a) (1) and (3) of the Act by assigning Coon to the "Wrigley work" in retaliation for his protests against the Company's waiver proposal. Coon's protests at the March, 1978 meeting were protected as concerted activity, see Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1348 (3d Cir.), cert. denied, 397 U.S. 935, 90 S. Ct. 943, 25 L. Ed. 2d 115 (1969), under section 7 of the Act.²¹  Section 8(a) (1), 29 U.S.C. § 158(a) (1) (1976), of the Act safeguards Section 7's guarantee by providing that "It shall be 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...." Section 8(a) (3) adds to this protection by holding that: "It shall be an unfair labor practice for an employer by discrimination in regard to hire or tenure of employment or any term or condition of employment to ... discourage membership in any labor organization...." 29 U.S.C. § 158(a) (3) (1976). The Board found General Warehouse in violation of both of these provisions.

We are limited in our review of National Labor Relations Board decisions. If the Board's findings are supported by substantial evidence on the record, we are obliged to enforce them. Universal Camera, 340 U.S. at 488, 491, 492-96, 71 S. Ct. at 464, 466, 467-68. We are also bound to respect the Board's conclusions on credibility and conflicting evidence if they take into account all relevant factors and are sufficiently explained. NLRB v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S. Ct. 853, 854, 7 L. Ed. 2d 829 (1962); NLRB v. New York Keansburgh Long Branch Bus Co., Inc., 578 F.2d 472, 478 n.15 (3d Cir. 1978). Bound by this standard, and based upon our independent review of the record, we conclude that there is substantial evidence to support the Board's order.

The record shows that in January, 1978 a Company representative warned Coon that he was considered to be an "instigator" and "troublemaker" because of his 1976 efforts to secure employee benefits. In March, 1978, when Coon had an opportunity to redeem himself with the Company, he instead chose to fight its cost of living increase waiver proposal. On March 30, immediately after its waiver proposal had been defeated, the Company announced that employees would no longer be granted working time to cash paychecks and that the rotation system for "Wrigley work" assignments would be changed to one in which the employer could arbitrarily pick employees to be saddled with the unpleasant task.

Considering this setting, the Board found that the mood and timing of Coon's assignment to "Wrigley work"²²  supported the charges of discrimination. The ALJ wrote:(Coon) had been a vociferous opponent to waiving the cost of living increase at the meeting conducted by Goldfarb in early March. The Respondent also was aware he had been instrumental in retaining an attorney about 2 years before to attempt to collect wages due to the employees under the collective bargaining contract. Although not exempt from Wrigley assignments, I am of the view the assignment of the Wrigley work to Coon on the heels of the employees' rejection of the Respondent's request they waive the cost of living increase was in retaliation for such rejection.

ALJ's Decision at 6-7, reprinted in Appendix at 223-224.

Although we might make a different decision if we were to decide the case de novo, as stated earlier, we must defer to the Board's decision if it is substantially supported by the record. Universal Camera, 340 U.S. at 488, 71 S. Ct. at 464. As described above, there is such support. The ALJ could reasonably infer from the evidence that Coon was assigned to the Wrigley work, three days in a row, because of his opposition to the Company's waiver proposal. He was further justified in finding that the Company's action was designed to coerce Coon and the other employees into accepting future waiver proposals. Accordingly, we hold that there is substantial evidence on the record to find that Coon's assignment to the Wrigley work was a violation of sections 8(a) (1) and 8(a) (3) of the Act.

The Board also found that General Warehouse violated section 8(a) (1) and 8(a) (3) of the Act by discharging Coon in retaliation for his opposition to the waiver proposal. As this Court wrote in Edgewood Nursing Center, Inc. v. NLRB, 581 F.2d 363, 368 (3d Cir. 1978): "Whether the employer's discharge of an employee violates section 8(a) (1) and 8(a) (3) of the Act depends on the employer's motive. N. L. R. B. v. Brown, 380 U.S. 278, 283, 85 S. Ct. 980 (983) 13 L. Ed. 2d 839 (1965); N. L. R. B. v. Eagle Material Handling, Inc., 558 F.2d 160, 169 (3d Cir. 1977)."

General Warehouse contends that Coon was discharged because of his excessive absenteeism. The Board takes the position that Coon was discharged because of his opposition to the Company's waiver proposal.

Our goal is to find the "real motive," NLRB v. Brown, 380 U.S. at 287, 85 S. Ct. at 985; NLRB v. Gentithes, 463 F.2d 557, 560 (3d Cir. 1972) or "real cause," NLRB v. Rubber Rolls, Inc., 388 F.2d 71, 74 (3d Cir. 1967) for Coon's dismissal. In Edgewood Nursing, we were faced with a similar problem. The Board contended that the employee had been unlawfully discharged because of her union activities. The employer, on the other hand, alleged that its nurse had been dismissed because she had made serious medication errors. In deciding which explanation to accept, this court proposed the following test for dealing with "dual-motive" cases:

If two or more motives are behind a discharge, the action is an unfair labor practice if it is partly motivated by reactions to the employee's protected activity.... On the other hand, if the employee would have been fired for cause irrespective of the employer's attitude toward the union, the real reason for the discharge is non-discriminatory. In that circumstance there is no causal connection of any anti-union bias and the loss of the job.... Thus, if the employer puts forward a justifiable cause for discharge of the employee, the Board must find that the reason was a pretext, and that anti-union sentiment played a part in the decision to terminate the employee's job.

Edgewood Nursing, 581 F.2d at 368 (citations omitted).

The Edgewood standard is designed to be applied on a case-by-case basis. While in several of our recent cases we have applied this standard and found that there is not substantial evidence to support the unfair labor charge,²³  we cannot come to the same conclusion here. In the case before us, the ALJ details why he found Coon's excessive absenteeism to be a mere pretext for his dismissal.²⁴  Although the pressure against Coon to improve his attendance record had been mounting for a while, General Warehouse chose to dismiss Coon at the very moment when his discharge would have the maximum coercive and punitive effect. The Company took absences that had previously been condoned²⁵  and used them as a reason for dismissing Coon. When General Warehouse finally "lowered the boom" on Coon, it did not give him a chance to explain his absences. If it had, it would have found evidence of a possible legitimate excuse for his absence on the day he was discharged.²⁶ 

Once again, although we might have decided the case differently de novo, there is substantial evidence on the record to support the Board's finding that the Company's hostility towards Coon's protected activities was the "real cause" for his dismissal. The timing of Coon's discharge, the Company's previous attitude toward him and his union efforts, and the almost reflexive resort by the Company to Coon's past attendance record all support the Board's conclusion.

There will necessarily be "close calls" in cases involving a discharge alleged to be in violation of section 8(a) (1) and 8(a) (3). This case is one of them. However, in light of the extensive record compiled by the Board, its credibility findings,²⁷  and our own reading of the evidence, we find that General Warehouse would not have discharged Coon when it did if it were not for his opposition to their waiver proposal.

Accordingly, we will enforce the Board's decision ordering General Warehouse to cease and desist from its unfair labor practices and to reinstate John Coon with back pay.²⁸ 

ALDISERT, Circuit Judge, dissenting.

The majority have determined that the National Labor Relations Board did not abuse its discretion¹  by refusing to defer to an arbitrator's decision in a contract dispute grounded on the same facts precipitating the unfair labor practice charge. They further hold that substantial evidence supports the Board's conclusion that General Warehouse Corporation violated §§ 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1), (3). I disagree on both counts.

In analyzing the Board's refusal to defer to the arbitrator, the majority appear to minimize a stipulated fact that I consider extremely important: General Warehouse and the union²  raised and introduced testimony on the issue of unlawful discrimination before the arbitrator.³  Although the arbitrator did not explicitly address the issue in his memorandum, the majority's conclusion that the arbitrator failed to consider the evidence reflects an unjustifiable interpretation of his award.

This court's decision today ultimately must reconcile the arbitrator's decision that "there was just cause for the discharge of John Coon" with the Board's decision⁴  that General Warehouse discharged Coon for discriminatory purposes in violation of §§ 8(a) (1) and (3). If the arbitrator's decision means that just cause existed for the discharge and also that the discharge was for just cause, then it must logically follow that the arbitrator implicitly considered and rejected Coon's argument that the discharge was for an illicit cause. Such a conclusion would be in full accord with the case law of this court on "dual motives," see Edgewood Nursing Center, Inc. v. NLRB, 581 F.2d 363, 368 (3d Cir. 1978) ("if the employee would have been fired for cause irrespective of the employer's attitude toward the union, the real reason for the discharge is nondiscriminatory."); it would also mandate deferral to the arbitrator's decision by the NLRB, see, e. g., Suburban Motor Freight, Inc., 247 N.L.R.B. No. 2, slip op. at 4, (1979-80) CCH N.L.R.B.Rep. P 16,648, at 31,080 (1980) (for deferral, unfair labor practice issue must have been "both presented to and considered by the arbitrator."). Moreover, a Board decision that the employer had committed an unfair labor practice by discriminatorily discharging Coon would be factually irreconcilable with the arbitrator's decision that the discharge was for just cause.

To reconcile the Board's order with the arbitrator's decision is to require a crabbed interpretation of the arbitrator's decision, an interpretation contrary to Board decisions and ruling case law. Under Edgewood Nursing Center, "if the employer puts forward a justifiable cause for discharge of the employee, the Board must find that the reason was a pretext...." 581 F.2d at 368. To be consistent with the Board's finding of a pretextual dismissal in this case, the arbitrator's finding of "just cause" for dismissal must be totally devoid of a causal relationship to the discharge. If the arbitrator found "just cause" and stopped short of relating that cause to the dismissal, then and only then can the two positions become reconcilable. It would be a bizarre interpretation indeed to conclude that the arbitrator stopped so short, yet so far away, from his duty to resolve the dispute before him.⁵  Yet that is precisely the scenario the Board has fashioned for this court, and the majority have accepted it.

This implausible interpretation of the arbitrator's decision, to be sure, runs counter to the linchpin of labor litigation: the courts must show proper deference to labor arbitration. The Supreme Court cautioned in the Steelworkers Trilogy that

(a)rbitrators have no obligation to the court to give their reasons for an award. To require opinions free of ambiguity may lead arbitrators to play it safe by writing no supporting opinions. This would be undesirable for a well-reasoned opinion tends to engender confidence in the integrity of the process and aids in clarifying the underlying agreement.

United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598, 80 S. Ct. 1358, 1361, 4 L. Ed. 2d 1424 (1960) (footnote omitted); see also Douglas Aircraft Co. v. NLRB, 609 F.2d 352, 355 (9th Cir. 1979). Simply put, the Supreme Court has ordered the federal judiciary and the federal administrative agencies to avoid nitpicking arbitral opinions, thereby diluting the power of the arbitrators and discarding the finality due consensual arbitration.

By assuming that the arbitrator found the existence of "just cause" for dismissal in Coon's excessive absenteeism, yet failed to determine that this excessive absenteeism was the cause of the dismissal, the Board has interpreted the arbitrator's award in the most unfavorable light, and has construed the award by resolving all inferences against the effectiveness of arbitration. I disagree strongly with this approach because it runs counter to our national labor policy favoring arbitration of disputes.

In my view, the proper way to interpret any arbitration award is to assume, absent some substantial countervailing indication, that the arbitrator did his job. In this case, his job was to determine not only whether Coon was excessively absent, a point not seriously contested, but more important whether General Warehouse actually discharged him for that reason. If this eminently reasonable assumption is entertained, the only conclusion to be drawn from the arbitrator's order and accompanying memorandum is that Coon was discharged for excessive absenteeism. Under this interpretation, the arbitrator's decision can be "arguably reconciled with the policies of the Act," NLRB v. Pincus Brothers, Inc. Maxwell, 620 F.2d 367, 375 (3d Cir. 1980) (Rosenn, J., opinion announcing judgment of the court). Board deferral is required in this situation under Spielberg Manufacturing Co., 112 N.L.R.B. 1080 (1955).⁶ 

Accordingly, I would hold that the NLRB abused its discretion in refusing to defer to the arbitrator, and I would deny enforcement.

I now turn to the determination of whether the Board's findings of fact are supported by substantial evidence on the record as a whole. The proper focus is on what I believe to be the crucial finding supporting the Board's decision, as phrased by the majority: "(t)he Company took absences that had previously been condoned and used them as a reason for dismissing Coon." Maj. op., at 973. Supporting this statement is the opinion of the administrative law judge:

(General Warehouse) contends (Coon) was discharged because of excessive absences, the most recent being on April 4. That he was absent a considerable number of times is amply supported by the record. But because justifiable grounds for discharge existed, it does not necessarily follow such was the motivating reason. The entire record must be examined.... By letter dated November 22, the Respondent pointed out to Coon he had been absent on November 2, 16-18. Coon was suspended without pay for one week(,) later changed to 2 days December 5 and 6. (G.C. Ex. 10 and 13) Respondent's records show he was out 14 work days in 1978 prior to his April 5 absence when he was discharged January 5-6, 13, 16-19, February 13 and 20, March 6, 14-17. The record further shows he called in to report his absence on only three of these occasions. (G.C. Ex. 3A) Yet after his suspension in early December 1977, he received no written or oral warnings. And then the Respondent lowered the boom on him when he was absent on April 5.

ALJ's mem. op., typescript at 7, reprinted in app. at 224. Considering the undisputed poor attendance record of Coon in light of the other circumstances existing up to the time of the discharge, I find the conclusion that General Warehouse condoned Coon's prior absences unsupportable on this record.

The undisputed evidence before the ALJ does not show condonation. The employer's past practice indicates that a three month interval between warning letters was not unusual. The first warning to Coon on July 2, 1976, covered the period April to July 1976 (three months). A letter of December 1, 1976, covered October and November (two months). Another letter on September 1, 1977, covered January through August (eight months). Although the penultimate letter of November 22, 1977, covered four absences in November, it followed the previous letter by over two months. ALJ's mem. op. at 7, reprinted in app. at 224. By that letter, Coon was suspended for two days without pay in December, 1977, and neither the union nor Coon challenged the propriety of that action. During the first three months of 1978, Coon had been absent fourteen days, but had called in to report his intention to be absent on only three of those occasions. The dispatch of four warning letters from July 1976 to November 1977 plus a suspension in December 1977 to me does not represent condonation. It reflects dissatisfaction and use of every sanction available to the company except the ultimate one dismissal. The company's hesitance in invoking the ultimate sanction is consistent with the intervals it waited to impose the lesser sanctions.

But further, by concluding that the company condoned Coon's absenteeism over this three month period, the Board has erected a classic Catch-22 situation. If the employer had discharged Coon during the wage dispute, it would have subjected itself to charges of attempting to coerce a waiver of the cost of living increase. But by waiting until the dust had settled on the wage dispute to invoke its rights under the contract, the employer is held to have condoned the absences and has subjected itself to a charge of retaliation. I have no doubt that Mr. Coon will relish this irony all the way to the bank.

The finding of condonation is central to the ultimate decision. Without it, the record shows a persistent pattern of unexcused absences, continuing in disregard of the increasing sanctions imposed by the company. Absent evidence that less vocal employees with similarly poor attendance records were retained, a decision that General Warehouse discriminated against Coon must rely on more direct evidence of discrimination. That evidence, according to the ALJ, was the Wrigley work. See ALJ's mem. op., typescript at 8, reprinted in app. at 225. No inference arises from Coon's assignment to that work once, on April 3, but the ALJ deemed Coon's assignment to it a second consecutive day to be quite significant. The objection to the Wrigley work was not handling that company's goods per se; the objection lay in the difficulty of manhandling heavy cartons of chewing gum.⁷  The first day Coon performed the work, however, the cars contained only Wrigley display racks, not cartons of Wrigley gum. See ALJ's mem. op. at 5 n.11, reprinted in app. at 222 n.11.⁸  Because his employer required him to perform the offensive work unloading and stacking the packages of gum only once, the union's claim that Coon received discriminatory work assignments lacks support in the record considered as a whole.

Greater awareness of, and sensitivity to, the "common law of the shop" regarding Wrigley work could have made the clear distinction between boxes of chewing gum and display racks determinative. Not surprisingly, the ALJ's failure to grasp this distinction has put him at odds with the decision of the arbitrator, in whom the parties have entrusted application of the "common law of the shop." United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S. Ct. 1347, 1352, 4 L. Ed. 2d 1409 (1960). This failure therefore offers additional support for deferral under Spielberg.

Accordingly, because I believe that the Board abused its discretion in refusing to defer to the arbitrator, producing an inconsistency between the arbitral award and the Board order, and because the Board's order is not supported by substantial evidence, I would refuse to enforce the order that John Coon be reinstated with backpay.