L. A. R. Electric, Inc.

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L. A. R. Electric, Inc. and James N. Wilkinson and David Goodman. 'Cases 26-CA-9650 and 26- CA-9717 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 18 October 1982 Administrative Law Judge William A. Gershuny issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a cross-ex- ception, a supporting brief, and a brief in opposi- tion to the General Counsel's exceptions. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. DECISION STATEMENT OF THE CASE WILLIAM A. GERSHUNY, Administrative Law Judge. A hearing was conducted in Columbus, Mississippi, on August 12, 1982, on consolidated complaint issued June 30, 1982, alleging violations of Section 8(a)(1) and (3) based on the March 1982 layoff of two journeymen elec- tricians and the discharge of a steward. i On the entire record including my observation of wit- ness demeanor, I make the following III THE UNFAIR LABOR PRACTICES A Background Respondent is a signatory to a labor contract between the Central Mississippi Chapter of the National Electrical Contractors Association and Local 917, which provides for union referral of journeymen and apprentices to em- ployers, for the resolution of all grievances or questions in dispute by a three-stage, industrywide procedure and for the protection of appointed job stewards from dis- crimination by the employer because of the performance of their responsibility to see that contract provisions are complied with on the job. At all relevant times, Respondent was engaged in elec- trical construction work at a dam project in Mississippi. During the second week of March 1982, Respondent Manager Lawler and Foreman Glasgow (a union member, but admittedly a supervisor under the Act) de- cided that a reduction of three journeymen was required because of declining work and shortages of material There is no suggestion on this record that the decision represented anything but a valid business judgment on Respondent's part; the work force thereafter was not in- creased; and the General Counsel offered no evidence to controvert the otherwise credible testimony of Lawler and Glasgow as to lack of work and materials. The se- lection of the employees to be terminated was left to Foreman Glasgow. On March 19, 1982, he laid off jour- neymen Goodman and Beach and discharged job Stew- ard Wilkinson The stated reasons for the layoff of the two were their unreliability and poor production; for the discharge, nonproduction. Seniority is not a contract cri- terion in layoffs; Glasgow did not use seniority as a basis for the layoffs; and there is no evidence that the use of seniority was required by custom and practice. Wilkinson filed a contract grievance over his discharge and, 6 days later, after an evidentiary hearing, the joint conference committee established under the contract unanimously upheld the discharge. No contract grievances were filed as to the two layoffs. FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The complaint alleges, the answer admits, and I find that Respondent, engaged in electrical contracting with annual interstate purchases in excess of $50,000, is an em- ployer under the Act. H. LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that Local 917, International Brotherhood of Electrical Workers is a labor organization under the Act. i The General Counsel's motion of September 16, 1982, to amend the complaint and reopen the hearing to receive evidence of two layoffs on August 1982 is denied for reasons stated at the hearing His motion of September 24, 1982, to strike Respondent's brief as untimely is granted B The Wilkinson Discharge The credible testimony of Lawler and Foreman Glas- gow, admitted in part by Wilkinson, establishes that as early as 1981 Wilkinson's performance on the job was the subject of criticism and complaint by Foreman Glas- gow. The grounds: poor production and refusal to per- form the work in accordance with the foreman's orders and suggestions. Manager Lawler, on a number of occa- sions, observed Wilkinson's performance and confirmed for himself Glasgow's opinion. Both Lawler and Glas- gow were confronted with another serious and continu- ing problem with Wilkinson's performance as steward: He took allegations of contract violations directly to Union Business Agent Moore, rather than making an effort to resolve them himself with Foreman Glasgow As a consequence, a number of jobsite conferences with Moore were required and ultimately a number of con- tract grievances were filed, requiring an evidentiary hearing before the joint conference committee An earli- er company decision to discharge Wilkinson was aban- 274 NLRB No. 99 L A R ELECTRIC 703 doned because Respondent did not want difficulty with the Union-Wilkinson not only was the appointed stew- ard on the job with special contract protection, but also was the elected vice president of the Local Union. The final decision to discharge Wilkinson on March 19, 1982, was made after he had caused "enough trouble." Respondent, at the hearing, moved to dismiss this por- tion of the consolidated complaint on the ground that a final and binding decision of the joint conference com- mittee on March 25, 1982, denied Wilkinson's grievance and unanimously upheld the discharge The relevant facts surrounding that decision and the decisional process are not in dispute. Following the March 19, 1982 discharge, the dispute over the discharge was unresolved between the parties and, pursuant to article I, section 7 of the contract, was referred to the joint conference committee (also known as the labor-management committee) at the request of the Union (along with a number of other unrelated contract grievances) On March 25, 1982, an evidentiary hearing was conducted before a five-member committee. Busi- ness Agent Moore represented Wilkinson who also was present, Lawler represented Respondent. As evidenced by the signed minutes of the joint committee and the credible testimony of the committee's recording secre- tary who took the minutes, Business Agent Moore pre- sented the grievance as to the discharge of Steward Wil- kinson; Lawler presented evidence relating to Wilkin- son's circumventing the foreman and going directly to Business Agent Moore with complaints of contract viola- tions and evidence relating to Wilkinson's refusal to follow job orders. A unanimous joint committee, after retiring and considering the evidence for a "considerable time," decided that the "firing of Job Steward Wilkinson was not in violation of the terms of the Working Agree- ment and L.A R. cleared of this charge " Two contract provisions were the subject of Wilkin- son's grievance: Section 22. The Employer recognizes the right of the Local Union to appoint a steward in writing at any shop or on any job where workmen are em- ployed under the terms of this agreement Such stewards shall see that the terms and conditions of this agreement are observed at his shop or on his job Under no circumstances shall a steward be dis- criminated against by the Employer, because of the faithful performance of his duties as steward. Section 23. Stewards shall be retained as long as the job for which he is steward continues at work and there is work for which he is qualified. The chief steward is retained longest among job stew- ards. Spielberg Mfg. Co., 112 NLRB 1080 (1955), recognizes the traditional notion that it is not the function of judicial or administrative tribunals to relitigate issues which pre- viously had been heard and decided under fair and final and binding procedures . It further recognizes that both national labor policy and congressional mandate establish consensual grievance-arbitration procedures as the pre- ferred method for the resolution of labor disputes be- tween parties to a labor contract. Spielberg and its proge- ny establish four general criteria for Board deferral to ar- bitral decisions: 1. The procedures must be fair and regular 2 The parties must agree to be bound by the de- cision 3. The decision must not be repugnant to the Act 4. The unfair labor practice issue must have been presented to and heard by the arbitral body. For reasons set forth below, I find and conclude that the March 25, 1982 unanimous decision of the joint con- ference committee fairly satisfies each of these factors. Accordingly, this portion of the consolidated complaint is dismissed. The proceeding was fair and regular, being a part of an industrywide procedure agreed upon for the resolu- tion of "all questions and disputes." The contract pro- vides that the three-stage procedure shall be the exclu- sive means for the resolution of such disputes and ques- tions and it contains a broad no-strike clause. Indeed, labor-management relations in this industry have reached such a level of maturity that the parties have agreed to decide unresolved issues in contract negotiations in much the same manner as grievances are resolved. A decision of the joint conference committee is final and binding on the parties to the contract, only in the case of a failure to agree can the grievance proceed for resolution to the third stage, the "Counsel on Industrial Relations for the Electrical Contracting Industry." The record here re- flects that Wilkinson was present and represented by Business Agent Moore who met with him to discuss the facts. There is no suggestion on this record that the normal procedures were not followed or that the griev- ant was denied an opportunity to fully present his case. The decision of this joint committee was unanimous and reached only after lengthy consideration of the evidence. As noted above, and as conceded by Business Agent Moore, the parties to the contract are bound by the deci- sion of the joint conference committee and may neither proceed further under the contract with the grievance nor engage in a work stoppage over the underlying dis- pute. The unfair labor practice issue was presented to and decided by the joint conference committee and its deci- sion is not repugnant to the Act for reasons set forth in G & H Products, 261 NLRB 298 (1982) There, as here, the discharged employee was a contractually protected job steward; there, as here, the grievance-arbitration process entertained the conflicting claims of the parties: on the one hand, that the steward was only performing his function as job steward, on the other, that he was en- gaged in subordination. The Board in that case affirmed dismissal by the administrative law judge, noting that it "has consistently adhered to the principle that status as a shop steward does not furnish a basis for total immunity from discipline for acts of insubordination, including at- tempts to persuade fellow employees to refuse to follow work orders " Here, the joint conference committee was presented with conflicting claims as to the reason for the discharge: one, performance of steward responsibilities to 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assert claims of contractual violations affecting the terms and conditions of his employment and that of his coem- ployees, the other, nonproduction and insubordination It decided that the latter was the true cause of Wilkinson's discharge; conversely, it decided that Wilkinson's per- formance of his duties as steward was not a factor in the discharge. Its decision was clear and unambiguous Cf. Wolff & Munier, Inc., 262 NLRB 333 (1982). Here, the unfair labor practice issue was identical with the issue decided by the joint conference committee , since the contractual protection afforded Steward Wilkinson ("Under no circumstances shall a steward be discriminat- ed against by the Employer, because of the faithful per- formance of his duties as steward ") is substantially identi- cal with that provided him under Section 7 of the Act. And, finally, a decision is not repugnant to the Act simply because a different result might be reached by an administrative law judge or the Board . G & H Products, supra. C. The Goodman Layoff Here, as with Wilkinson , there is credible testimony from Lawler and Glasgow as to poor performance on the job by Goodman . A previous foreman . Osborne, ad- mittedly had some unspecified job problem with Good- man which surfaced when the latter left the job for an- other. In any event, the credible testimony of Glasgow is that Goodman, for that reason, was targeted for layoff when it came time to reduce the work force . On January 19, 1982, before any reduction in force was under consid- eration, Goodman filed an intraunion charge against his union brother (and job foreman) Glasgow, based on the latter's refusal to enforce the contract on the job and protect the jurisdiction of the electricians . Notice of the charge was mailed to Glasgow by the Union on Febru- ary 1, and a hearing was scheduled for February 19. One week before the hearing, Glasgow decided to discharge Goodman and replace him with another journeyman. That decision was revoked when Glasgow was informed by Union Business Agent Moore that , since Goodman was the only over-50-year-old journeyman on the job, his discharge would violate a contract provision requir- ing at least one 50-year -old on jobs with five or more journeymen . Goodman (along with Wilkinson and Beach) testified against Glasgow at the union hearing and, on February 22, 1982, the union trial board found Glasgow guilty of interfering with the Union 's pefor- mance of the contract and assessed a $50 penalty against him. Some weeks later, Glasgow advised Moore of a re- duction in force, adding that he would have a "surprise" for him . When the reduction occurred on March 19, 1982, it took the form of the layoff of Goodman and Beach and the discharge of Wilkinson . What Glasgow meant by his "surprise" is unexplained in this record but, based on my hearing of the testimony and my observa- tion of the witnesses, I conclude that Glasgow was refer- ring to the layoff of Goodman, since by being able to reduce the work force to four journeymen, he was no longer obliged to retain a 50-year -old on the work force. On this record, I find that Glasgow's aborted plan to discharge Goodman on February 22, 1982 , was motivat- ed solely and exclusively by Glasgow's desire to seek re- venge for the intraunion charge filed by Goodman against him However, the complaint does not charge a violation of the Act based on those events . Rather, it charges that the March 19, 1982 layoff of Goodman was motivated unlawfully by the latter's efforts to compel Glasgow to enforce the contract terms for the benefit of electricians on the job The difficulty with that theory, however, is that, as found above, Respondent's March 19, 1982 layoff was a bona fide reduction in force and Goodman long before had been selected by Glasgow to be one of the first to go because of poor performance on the job . The added insult of tntraumon charge, therefore, was not a factor in Goodman 's selection for layoff He would, I find , have been laid off even had he not en- gaged in the protected concerted activities described above. In this sense, Glasgow "lucked out," so to speak; he never had to act against Goodman out of revenge, but was saved from doing so by Respondent's decision to reduce the work force Accordingly, this portion of the consolidated com- plaint also is dismissed. D. The Beach Layoff The participation of Beach in the activities of Wilkin- son and Goodman to force Foreman Glasgow to enforce the contract terms of their benefit is, on this record, ex- tremely remote-he had testified against Glasgow at the union hearing on Goodman's intraunion charge. But, as in the case of Goodman, Beach also had been targeted long before by Glasgow as a candidate for the first layoff because of his poor performance. I am unable to find, based on this record, that Beach's testimony played any role whatever in Glasgow 's decision in the middle of March 1982 to add Beach to the list of employees slated to be terminated on March 19 , 1982 Specifically, I find that he would have been laid off on that day regardless of his activities in seeking enforcement of the contract terms. Accordingly, this portion of the consolidated com- plaint also is dismissed. Throughout, I have credited the testimony of Glasgow and Lawler as to their complaints of poor job perform- ance on the part of Wilkinson, Goodman, and Beach. Both appear to be sincere and trustworthy witnesses and those character traits are not diminished by their inability to fix precise dates for their observations or warnings. Notice is taken of the fact that , in the construction indus- try, the disciplinary procedures common to other places of fixed employment are virtually unknown Personnel folders generally are not kept because of the uncertain duration of employment and written forms of discipline are rarely used . Indeed, the industry itself recognizes the broad discretion vested in the foreman in determining which employees are to be laid off, the contract contains no criteria to determine the order of layoff. I also note in this connection that neither Goodman nor Beach filed grievances under the contract, as they had a right to do, challenging Respondent's "cause" for layoff , and that no complaint was filed with the Board on their behalf until late in this proceeding which originally was initiated solely on Wilkinson's behalf. At the same time, both Wil- L A R ELECTRIC kinson and Goodman admitted the existence of some prior complaints concerning their performance on the job, thus corroborating the testimony of Lawler and Glasgow in this respect. Accordingly, the consolidated complaints must be dis- missed in their entirety. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER 705 It is ordered that the consolidated complaints be dis- missed. 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.