Sachs Electric Co.

866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sachs Electric Company and Joseph T. Verlin. Case 7-CA-23230 28 February 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 21 December 1984 Administrative Law Judge Benjamin Schlesinger issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The relevant facts, which are essentially undis- puted, reveal that the Charging Party, Joseph Verlin, was employed by the Respondent from 24 October 1983 until 3 February 1984.1 During that period, Verlin, acting on what he believed to be his authority as union steward, 2 spoke out on other employees' behalf to the Respondent's general fore- man Ronald Martin.3 The record reveals that on one such occasion during the last week in January, Verlin complained to Martin, and subsequently to the Union's business manager Roy Blain about Martin's failure to allocate the available overtime work to other employees as required under the contract. On 3 February Martin was instructed by Project Engineer Michael Frank to lay off one of three individuals due to a lack of work. Martin se- lected Verlin for layoff, purportedly because he was less efficient than the other two employees. On 7 February the Union filed a grievance on Verlin's behalf alleging that, as union steward, Verlin had been improperly selected for layoff under article II of the contract.4 Further, on the basis of information received from Verlin, the Union filed another grievance alleging that Martin had failed to comply with the contract by not allo- cating overtime work to other employees. i All dates are in 1984 unless otherwise indicated. 2 The Union involved here is the International Brotherhood of Electn- cal Workers, AFL-CIO, Local Union No. 107 3 Verlin apparently interceded on behalf of employee Bloye who was to be discharged by Martin for spending too much time in the restroom Verlin also took issue with Martin over the length of employee coffee- breaks, and brought safety violations to Martin's attention 4 Art II of the contract essentially provides that a union steward shall be the last person laid off with the exception of the foreman It further provides that "under no circumstances shall the Steward be discriminated against because of the faithful performance of his duties as Steward." On 22 February a Labor Management Commit- tee, composed of an equal number of Respondent and union representatives, heard evidence on the grievances and concluded that Verlin's layoff was not improper as he was not a steward when he was laid off. The Committee further decided that the Respondent should pay $75 into an Apprenticeship Fund as settlement of the grievance involving the overtime work. On a charge filed by Verlin on 16 March, the General Counsel issued the complaint in this case alleging that the Respondent had violated Section 8(a)(3) and (1) of the Act by laying off Verlin be- cause of his "membership in and activities on behalf of the Union and because of his protected concerted activities." More specifically, the issue raised by the complaint, as evident from the record and the judge's decision, is whether Verlin was se- lected for layoff because of his activities either as a union steward or as an employee acting on behalf of other employees to enforce the contract. The judge found that the question, whether Verlin had been discriminated against for activities engaged in as a union steward, had been decided by the Committee and that deferral to the Commit- tee's decision on this issue was proper, citing Olin Corp., 268 NLRB 573 (1984). No exception was taken to this finding and we adopt the judge's find- ing in this regard. However, the judge also found that the question whether Verlin had been selected for layoff for engaging in protected activity as an employee, rather than as a steward, had not been presented to the Committee for resolution. He, therefore, declined to defer to the Committee's de- cision on this issue and instead found, on the merits, that Verlin had been unlawfully laid off for complaining about Martin's failure to share the overtime work as required by the contract.5 Con- trary to the judge, we find that deferral to the Committee's decision on this latter issue is also ap- propriate. Under Olin, supra, the Board will view a statuto- ry question before it as having been adequately considered by an arbitrator if. (1) the contractual question before the arbitrator is factually parallel to the unfair labor practice issue; and (2) the arbitra- tor has been presented generally with the facts rel- evant to resolving the unfair labor practice. Here, there is no question that the contractual and statutory issues are factually parallel. In its 5 The judge did not find that Verlm's conduct in speaking out on other employees' behalf was a factor in his layoff The General Counsel did not except to the absence of such a finding. Consequently, the only issue before the Board is whether Verlin was unlawfully laid off for complain- ing about Martin's failure to abide by the contractual obligation concern- mg the sharing of overtime work 278 NLRB No. 121 SACHS ELECTRIC CO. 867 contractual grievance, the Union asserted, inter alia, that the Employer discriminated against Verlin by laying him off due to his activities as a union steward. In this unfair labor practice proceeding, the General Counsel alleges that Verlin was unlaw- fully laid off because of his attempt to force com- pliance with the collective-bargaining agreement. The conduct allegedly engaged in by Verlin as union steward, and which the Union asserted to the Committee was the cause of the discriminatory layoff, is virtually identical to that purportedly en- gaged in by Verlin as an employee, and alleged by the General Counsel to have been the cause of Verlin's layoff. Thus, the Union asserted before the Committee that, as union steward, Verlin complained about Martin's failure to share overtime work with em- ployees as required by the contract and that, be- cause of his complaint, Verlin was laid off.° Here, the General Counsel alleges that, as an employee, Verlin complained about Martin's failure to abide by the contractual requirement concerning the sharing of overtime work and that it was this con- duct which led to his layoff. Except for the fact that the contractual grievance refers to Verlin as a steward, while the complaint refers to him as an employee, the contractual and statutory issues are clearly identical. To decide the statutory issue, the Board would have to consider such factual questions as whether Verlin actually engaged in the above -described conduct, whether he did so in furtherance of a col- lective-bargaining agreement, and whether it was his complaint about Martin, or some other reason (nondiscriminatory), which resulted in his layoff. Likewise, the contractual question of whether Verlin was selected for layoff because he com- plained, as steward, of Martin's refusal to share overtime work, rests on the same set of facts and circumstances. In light of the above, we conclude that the contractual and statutory issues are indeed factually parallel. a The issue before the Committee was not, as found by the judge, whether Verlin was a steward but rather whether his layoff was precipi- tated by his complaint, as union steward, of Martin's refusal to share the overtime work with employees. Thus, in a letter submitted by Verlin to the Committee in support of his grievance, Verlin states, "I feel the reason I was laid off is because of disagreements between the foreman and myself acting as a union representive of [sic ] interpretation of the contract." The fact that the Committee, after hearing all the evidence, resolved the grievance by finding that Verlin was not a steward is no indication that it did not "adequately consider" the unfair labor practice issue under the Olin standards. Under Olin, the determination of whether a statutory issue has been "adequately considered" by an arbiter hinges not on the result reached by the arbiter but rather , as indicated, on whether the contractual and statutory issues are factually parallel and on whether the facts necessary to resolve the statutory question have been presented generally to the arbiter. We also find that the facts needed to resolve the unfair labor practice question were generally pre- sented to the Committee. As stated, in his letter to the Committee in support of his grievance, Verlin claimed that his layoff was caused by disagree- ments between Martin and himself. According to Verlin, these disagreements related solely to Mar- tin's misuse of overtime work and to Verlin's other activities on behalf of employees generally. Fur- ther, in support of the grievance pertaining to Mar- tin's misuse of overtime work, Verlin submitted an- other letter to the Committee in which he accused Martin of violating the contract as it pertained to overtime work and insisting that the work be equally divided among all employees. Union Busi- ness Manager Blain testified, without contradiction, that Verlin had "presented his case" to the Com- mittee, including those facts pertaining to his layoff. Finally, Union President Frank McComb, who served as a member of the committee, testi- fied, without contradiction, that Verlin was ques- tioned by the Committee members on matters raised by the grievances. On the basis of the above facts, we conclude that the facts necessary to re- solve both the statutory and the contractual issues were before the Committee. Having found that the contractual and statutory issues are factually parallel and that the facts rele- vant to resolving the unfair labor practice issue were generally presented to the Committee, we conclude that the statutory issue was adequately considered by the Committee and that deferral to its decision is therefore appropriate. Accordingly, we shall dismiss the complaint in its entirety. ORDER The complaint is dismissed. MEMBER DENNIS, dissenting in part. Contrary to my colleagues, and in agreement with the judge, I would not defer to the Labor- Management Committee's decision the complaint allegation that Verlin was unlawfully laid off for his activities as an employee in attempting to en- force the contract. I also agree with the judge on the merits, for the reasons he stated, that the layoff violated Section 8(a)(1) of the Act. In brief, Verlin was laid off on 3 February 1984; two other employees were retained. The Union filed a grievance on 7 February, alleging he had been improperly laid off under section 2.15 of the applicable collective-bargaining agreement. That section provides that a union steward is to be the last person laid off and is not to be discriminated against. As the majority recognized, the Union, inter alia, alleged before the Committee that Ver- 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tin's layoff resulted from his complaints "as Union steward" about improper assignment of contractual overtime. The Committee denied the grievance on the ground that the evidence did not support Ver- lin's claimed steward status. The Committee did not address, nor did it have the power to address, any issue of discrimination against Verlin on ac- count of his contract complaints as an employee, because the sole article of the labor agreement al- legedly violated protects only stewards . Accord- ingly, the issues involved in the grievance and unfair labor practice proceedings are not parallel, and thus deferral is inappropriate under Olin Corp., 268 NLRB 573, 574 (1984). James P. Stevens, Esq., for the General Counsel. R. Troy Kendrick Jr., Esq., and Deborah A. Weedman, Esq. (Blumenfeld, Sandwelss, Marx, Tureen, Ponfil & Kaskowitz PC), of St. Louis, Missouri, for the Re- spondent. DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW BENJAMIN SCHLESINGER, Administrative Law Judge. On February 3, 1984,1 Ronald Martin, general foreman of Respondent Sachs Electric Company, laid off Charg- ing Party Joseph T. Verlin, while retaining two other employees, Tom Bossardet and Gary Bloye. The Gener- al Counsel, claiming that the selection of Verlin was caused by his protected and concerted activities as a steward for the International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 107 (the Union), or as an employee of Respondent , complains that Verlin was discharged in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. Respondent denies that it violated the Act in any manner and affirmatively alleges that Verlin's claim was denied in a grievance pro- cedure, and that the denial should be deferred to under the doctrine enunciated in Spielberg Mfg. Co., 112 NLRB 1080 (1955).2 Respondent does not contest that it is subject to the ju- risdiction of the Act. I find, as Respondent admits, that it is a corporation duly organized under and existing by virtue of the laws of the State of Missouri, that it main- tains its principal office and place of business in St. Louis, and that it is engaged in providing electrical con- struction and related services. It maintains various instal- lations in the United States, including one at the James DeYoung Power Station in Holland, Michigan, where Verlin was employed. During the year ending December 31, 1983, a representative period, Respondent had gross revenues in excess of $500,000, and it performed ' services valued in excess of $60,000, of which in excess of $50,000 were performed in and for various enterprises lo- cated in States other than the State of Michigan. I con- ' All dates refer to the year 1984, unless otherwise stated. S The relevant docket entries are as follows : Verlin's unfair labor prac- tice charge was filed on March 16, the complaint issued on April 30, and the hearing was held in Grand Rapids, Michigan, on August 15. elude, as Respondent admits, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. I also conclude, as Respondent admits, that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. The Union, on February 7, grieved Verlin's discharge as a violation of article II, section 2.15, of its collective- bargaining agreement with the Grand Rapids Division, Michigan Chapter, National Electrical Contractors Asso- ciation Inc., under which Respondent was bound. That section reads, in part, as follows: 2.15. The Business Manager of the Union shall have the right to appoint a Steward at all shops and on all jobs. He shall notify the Employer in writing as to who the Steward is in the shop or on the job. The Steward shall be a working employee who, in addition to his work, shall be permitted to perform during the working hours such of his Union duties as may be required. The Steward or Business Man- ager shall be notified of all overtime by the Em- ployer or his representative whenever possible. He shall not leave the job site to which he is assigned without notifying the Employer or the Employer's representative on the Job. The Steward shall be the last man laid off the job with the exception of the Foreman and in the event of reduction of working forces due to transfers, temporary layoff, or other reasons, the Steward shall be the first workman re- turned to the job, provided he is qualified to per- form the remaining work. These conditions shall exist for the duration of any job. Under no circum- stances shall the Steward be discriminated against because of the faithful performance of his duties as a Steward. On February 22, the labor management committee considered Verlin's discharge, as well as another griev- ance initiated by Verlin who alleged that Martin had worked overtime in violation of his contractual duty to divide overtime as equally as possible among all the em- ployees. The employer representatives proposed that both grievances be settled by Respondent's payment into the joint apprentice and training fund of an amount equivalent to the straight-time wages for the overtime hours Martin admitted that he worked. The union repre- sentatives counterproposed that Respondent pay an amount equivalent to 6 hours . The Employer representa- tives, stating that they felt that neither grievance was jus- tified, agreed to a settlement of $75 to be paid to the fund, if the Union would drop all its charges. After ini- tial rejection, the union representatives agreed to the last offer. This agreement and decision by the full committee constituted a complete disposition of both grievances. Union Business Manager Roy Blain testified that the reason for the Union's concurrence was that he had never notified Respondent in writing that Verlin was the union steward and that, as a result of his slip up, the Union could not support its claim that Verlin was a steward and was thus entitled to superseniority and to be laid off after all the other employees. Because the Union agreed that Verlin was not the steward, the committee's SACHS ELECTRIC CO. 869 decision effectively disposes of an additional claim that Verlin was discriminated against because of the "faithful performance of his duties as Steward." Verlin was not a steward, as decided by the committee; and there is no basis for the unfair labor practice complaint's allegation that Verlin was discharged for the very reason that the committee held he was not. I see no reason why this part of the complaint should not be deferred to under Spiel- berg. The committee considered what was Verlin's posi- tion, found that he was not a steward, and dismissed his claims. There is no allegation that the grievance hearing did not otherwise comport with the requirements set forth in Spielberg. The issue of Verlin's status as a stew- ard before the committee is factually parallel with the issues herein and the committee was presented with many of the same facts presented herein and relevant to resolving the issue of Verlin's occupying the position of steward. Olin Corp., 268 NLRB 573 (1984). Accordingly, I dismiss this part of the complaint. However, the General Counsel alternatively contends that Verlin was discharged because of his concerted and protected activities as an employee. This allegation was not presented to the labor-management committee. The sole issue before the committee was Verlin's rights as a steward. Because the committee agreed that Verlin was not a steward, it made no difference that his discharge resulted from his faithful performance of his duties, be- cause he could not possess the duties of an office which he did not hold.3 I find merit in this allegation of the complaint. When Verlin was terminated, Martin said: "D day buddy, we are even." Martin did not deny making this statement, and Verlin's testimony gave meaning to Martin's indication that he was retaliating against Verlin for his complaint only a week before that Martin was not allocating overtime in the way that was required by the agreement. Under Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). See also NLRB v Transpor- tation Management Corp., 462 U.S. 393 (1983); the Gener- al Counsel presents a prima facie case when it is shown that a reason for the discipline was one which violates the Act. The burden then shifts to the employer to dem- onstrate that it would have taken the same action even in the absence of a violation. Although I am convinced that Martin was under in- structions to lay off one of three employees because of insufficient work, I find that Respondent has failed to meet its burden that it would have laid off Verlin and not one of the other employees. Martin testified that he selected Verlin because "he was the most expendable man at that time based on production.... I thought that Tom Bossardet and Gary Bloye were performing more work, more efficiently." Martin's subjective judg- ment might be perceived as difficult to overcome,4 but I 0 Respondent's contention based on certain of Blam's responses at Tr. 87 is maccurate. My questions to Blain were premised solely on sec. 2.15 of the collective-bargaining agreement and did not involve Verlin's ac- tivities as an employee. Finally, although Verlin's grievance as an em- ployee appears to arbitrable, Respondent waived any claim to a defense under Collyer Insulated 11rre, 192 NLRB 837 (1971). 4 Martin conceded that there was no documentary evidence to prove which of the three employees worked faster or performed more work. am persuaded that Martin's explanation is unworthy of belief. Martin never criticized the quality of Verlin's work; but once he complained about the quality of Bos- sardet's work, and on another occasion the work of both Bloye and Bossardet had to be redone. It was Verlin whom Martin asked to assist in correcting the others' work. Although Martin complained on several occasions to Verlin about his rate of progress or his taking of break- time, he complained just as much to the two other em- ployees. Indeed, just before Christmas 1983, Martin almost fired Bloye for absence from the job and Verlin interceded with Martin on Bloye's behalf. Thereafter, Martin complained to Verlin on several occasions about Bloye, stating that as soon as work slackened, he was going to lay Bloye off. Instead, Martin selected Verlin, who had complained to Martin in late January that Martin was not sharing overtime with the other employees, as the bargaining agreement required. On January 31, Verlin and Blain dis- cussed the overtime issue with Martin.5 Three days later, Verlin was laid off, accompanied by Martin's "we're even" statement, which Martin not only did not deny but also did not explain. I construe "even" as "Having exact- ed full revenge,"e and Martin's silence leads me to find that he was retaliating against Verlin for his concerted and protected activities in attempting to force Martin's compliance with Respondent's collective-bargaining agreement. Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967); NLRB v. City Disposal System, 465 U.S. 822 (1984). I conclude that Respondent violated Section 8(a)(1) of the Act and that Respondent's activities, occurring in connection with its business operations, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I will recommend that Respondent cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. Because the Holland, Michigan job ended on April 4, I will not rec- ommend that Verlin be reinstated to his prior position; but I shall recommend that Respondent make Verlin whole for loss of earnings or other benefits he was de- prived of in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed as set forth in Florida Steel Corp., 231 NLRB 651 (1977).8 In addition, I shall order 5 I discredit Martin's testimony that Bloye and Bossardet were privy to this discussion or complaint. Neither employee testified, and it was Verlin alone who sought the Union's assistance in resolving the problem. American Heritage Dictionary of the English Language, p. 454 (1st ed. 1959). 7 Bossardet and Bloye were laid off about a week before April 11, 1984. Verlin's backpay shall terminate on the date the other employees were laid off. 8 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that any reference to Verlin's layoff on February 3, 1984, spondent's principal place of business is in St. Louis, Mis- be removed from Respondent's personnel records. Final- souri, it would not effectuate the policies of the Act to ly, I shall order that Respondent mail the recommended require it to post the notice there. attached notice to the employees employed by Respond- '[Recommended Order omitted from publication.] ent on February 3, 1984, and to the Union. Because Re-