Aces Mechanical Corp.

928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aces Mechanical Corp. and Steven J. O'Toole. Case 2-CA-19238 3 February 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 30 August 1985 Administrative Law Judge Arthur A. Herman issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed an answer- ing 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 briefs and has decided to affirm the judge's rulings, findings, I and conclusions only to the extent consistent with this Decision and Order. The judge dismissed the complaint in its entirety, concluding that the Respondent did not violate Section 8(a)(1) and (3) by threatening to discharge and by refusing to reinstate employee and Union Steward Steven O'Toole to his former position of employment on 5 November 1982. We disagree with the judge for the reasons set forth below. The Respondent is a plumbing, heating, ventilat- ing, and air-conditioning contractor in the building and construction industry. At all pertinent times, the Respondent, a member of the Association of Contracting Plumbers of the City of New York, Inc. (the Association), was subject to successive collective-bargaining agreements negotiated by the Association and Local 2 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (the Union). The agreements provided, in pertinent part: "A steward shall be employed on all jobs where more than four (4) men are employed at plumbing work. He shall be appointed by the Business Agent in the district where a job is located." In March 1982,2 the Re- spondent employed Steven O'Toole, a journeyman plumber, to work at the Dag Hammarskjold Towers project in New York City. At the end of April or the beginning of May, O'Toole was ap- pointed shop steward by the Union's business agent i The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings. 2 All dates refer to 1982 unless noted otherwise Scarlatos. It is undisputed that, in contrast to the earlier steward, O'Toole was a diligent, aggressive steward who actively pursued grievances and re- ported perceived safety problems to the Respond- ent's foreman, to the general contractor on the project, and to OSHA. O'Toole's aggressive pur- suit of his steward duties prompted the Respond- ent's general superintendent Mucci to complain to Scarlatos about O'Toole being the shop steward.3 On 17 September, O'Toole was discharged after he had allegedly returned to work late after lunch. O'Toole filed a grievance over his discharge that subsequently proceeded to a hearing before a joint arbitration committee on 3 November. The com- mittee deadlocked and the meeting adjourned. Later that same day, after the committee ad- journed, the Union's president William Gross phoned Norman Burg, the Respondent's president, and asked Burg to reinstate O'Toole. Gross sug- gested to Burg that O'Toole would return as an employee only but not as a steward. Burg at first refused but later in the conversation agreed to rein- state O'Toole on the basis that he not act as stew- ard. Burg, however, indicated to Gross that he did not want O'Toole on the job and said that he in- tended to pursue the arbitration over O'Toole's dis- charge. When O'Toole returned to the job the next day, Foreman Lanzone advised O'Toole and the other plumbers that O'Toole was returning to work as a journeyman plumber and not as shop steward. O'Toole disputed this and phoned the Union and spoke with Mike Soletti, the secretary-treasurer. Soletti advised O'Toole to work out the day and stated that Scarlatos would come down to straight- en out the matter. The following day Scarlatos went to the jobsite and met with Mucci, who in- sisted that O'Toole could not return to work as a shop steward. Scarlatos disputed this. O'Toole was summoned and Burg and Lanzone were also present. Burg then advised Scarlatos that he had made an agreement with Gross whereby O'Toole could return only as a journeyman plumber and not as a steward. Scarlatos insisted that O'Toole would be the steward. Both Burg and Scarlatos ad- hered to their respective positions and eventually Scarlatos and O'Toole left the job. Thereafter, the arbitration proceedings concerning O'Toole's grievance resumed and two hearings were held on 9 and 28 February 1983, respectively. Subsequent- ly, the arbitration panel majority issued an award about 7 March 1983 finding that the Respondent S In sec III, of his decision, the judge inadvertently stated that it was the Respondent's foreman, Lanzone, rather than Mucci, who had com- plained to Scarlatos about O'Toole 282 NLRB No. 137 ACES MECHANICAL CORP. 929 had had just cause to discharge O'Toole; ° The award noted in pertinent part: The Employer gave as reason for the dis- charge of Grievant Steven O'Toole as follows .. . drinking at a bar past his lunch period, re- turning from lunch late for the continuance of his journeyman duties, being pugnacious and threatening to the foreman on the job, and fail- ing to perform his services within the bounds of his trade. . . . Explanations offered by the Grievant were not persuasive that any mitiga- tion of the penalty of discharge is warrant- ed.... Based on the substantial credible evi- dence of the case as a whole, there was just cause for the discharge of Grievant Steven O'Toole. Following the issuance of the arbitral award, the Regional Director issued a complaint alleging in substance that the Respondent had violated Section 8(a)(1) and (3) by threatening O'Toole with dis- charge unless he refrained from serving as job steward and by refusing to reinstate him to his po- sition "[fjrom on or about November 5 1982, until on or about March 7 1983." The complaint did not include any allegation concerning O'Toole's initial discharge on 17 September, as the Region had de- ferred this matter to the decision of the arbitrators noted above. The judge dismissed the complaint on two alter- native grounds. First, the judge found it appropri- ate to defer about the November conduct to the ar- bitrators' award that found O'Toole had been dis- charged for just cause in September. In so doing, the judge rejected the General Counsel's argument that deferral was inappropriate because the award concerned only the 17 September discharge and not the later 5 November discharge that is at issue in this unfair labor' practice proceeding. The judge, disagreeing with the General Counsel, found that the latter discharge was so intertwined with the original 17 September discharge that the arbitration proceeding "could not help but discuss later events including the 5 November incident." The judge further noted that minutes of the 9 and 28 Febru- ary 1983 arbitration hearings made reference to the 5 November incident, and the judge therefore in- ferred that the arbitrators had duly considered this incident, in reaching their decision. The judge thus concluded, relying on Olin Corp., 268 NLRB 573 (1984), that deferral was appropriate because the contractual issue is factually parallel to the unfair labor practice issue; the arbitrators were presented generally with the facts relevant to resolving the unfair labor practice; and the General 'Counsel failed to demonstrate any defect in the award. Alternatively, the judge concluded that, even if deferral under Olin was inappropriate, the com- plaint should be dismissed on the merits. In this regard, the judge initially noted the "uncontrovert- ed evidence" that O'Toole had been an aggressive, effective steward and of the Respondent's clear un- happiness with having to deal with him as steward. The judge further noted that when the opportunity presented itself the Respondent chose to discharge O'Toole on 17 September and to take its chances before a panel of arbitrators. However, the judge also noted that the propriety of O'Toole's 17 Sep- tember discharge was not before him for consider- ation and that, accordingly, the events occurring before that date were irrelevant to the issue that was before him-O'Toole's discharge on 5 Novem- ber. The judge found that the substance of the 3 November telephone conversation between Gross and Burg was crucial to resolving the issue con- cerning O'Toole's 5 November discharge. Accept- ing "without qualification" Burg's testimony con- cerning the conversation, the judge concluded that Gross and Burg had struck a bargain whereby O'Toole would be reinstated as an employee but not as shop steward, pending the outcome of the arbitration. The judge then found that the thresh- old question to be resolved was whether a union can waive an employee's statutory rights. In this regard, relying on Prudential Insurance Co., 275 NLRB 208 (1985), the judge found that, under ap- plicable case law, a union may lawfully waive em- ployees' statutory rights so long as the interest of the union and the employees it represents are not adverse, and the waiver is clear and unmistakable. Applying these principles to the instant case, the judge found that Gross could strike, a bargain with Burg wherein O'Toole would be reinstated pending the outcome of the arbitration, that the interests of the Union and O'Toole were not adverse, and that Gross' offer to Burg was clear and unmistakable. The judge noted that the alternative would have been for O'Toole to remain unemployed, awaiting the outcome of the arbitration. In these circum- stances, the judge found that the Union had prop- erly waived O'Toole's right to be steward and that the Respondent had not violated the Act by insist- ing that O'Toole be reinstated only as a journey- man. We disagree with both of the judge's alternative bases for dismissing the complaint allegations. First, contrary to the judge, we find it inappropriate to defer the resolution of the alleged unfair labor practices to the arbitrators' award. In this, regard, we note that, under Olin Corp., deferral to an arbi- tration award is appropriate when an arbitrator has adequately considered, the unfair labor practices. 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And, the arbitrator is found, under Olin, to have done so when the contractual issue is factually par- allel to the unfair labor practice issue and the arbi- trator has been presented generally with the facts relevant to resolving the unfair labor practice issue. In the-present case, we find it clear, as the General Counsel has urged, that the contractual issue before the arbitrators is not factually parallel to the unfair labor practice issues presented here. In this regard, the issue before the arbitrators involved the propri- ety, under the contract, of O'Toole's 17 September discharge. The resolution of this issue entailed an analysis of O'Toole's alleged job misconduct that prompted his discharge in September. The issues before the Board concern the lawfulness of the Re- spondent's subsequent conditioning of O'Toole's re- instatement on his relinquishing his office as stew- ard. The resolution of this issue requires an analysis of events occurring after O'Toole was discharged. Indeed, it is evident from the arbitrators' decision itself that the contractual issue is not factually par- allel to the unfair labor practice issues. Thus, in concluding that the Respondent had just cause under the contract to terminate O'Toole, the arbi- trators' decision recites exclusively those facts per- taining to O'Toole's alleged misconduct prior to his September discharge. In contrast, as the judge him- self recognized events predating O'Toole's Sep- tember discharge were irrelevant to the issues pre- sented here and they were not considered by the judge in his analysis of the lawfulness of the Re- spondent's conduct in November. It is true, as the judge noted, that minutes of two arbitration hear- ings reflect that the arbitrators were presented with certain testimony concerning O'Toole's having been offered reinstatement and the dispute over his entitlement to remain as steward. However, while this does indicate that the arbitrators may have been presented with the facts relevant to the unfair labor practice issue, it does not mean the issues are factually parallel when they clearly are not.4, In these circumstances, we conclude that the General Counsel has met the burden of establishing that res- olution of the unfair labor practice issues should not be deferred to the decision of the arbitrators. Turning to the merits of the complaint allega- tions, we first note that the right to hold union office clearly is protected by Section 7 and an em- ployer violates Section 8(a)(3) by refusing to employ an individual because he has been designat- ed as union steward. John P. Bell & Sons, 266 NLRB 607, (1983); see generally Metropolitan 4 Moreover, we note the absence of any reference to this testimony in the arbitrators' decision We can only infer from this that the arbitrators concluded, as did the judge here, that not all the facts presented in their respective proceedings were germane to the issues before them. Edison Co. v. NLRB, 460 U.S. 693 (1983). It is also clear, as noted by the judge, that a union may in certain circumstances effectively waive an employ- ee's Section 7 rights. To be effective, however, a waiver of statutory rights must be established clear- ly and unmistakably. Metropolitan Edison, supra. The judge concluded that Gross in his 3 November conversation with Burg clearly and unmistakably waived O'Toole's statutory rights. We disagree. Assuming, without deciding, that union officials can waive employees' rights to serve as stewards, we do not find that a clear and unmistakable waiver has been established here. Although Gross may have attempted such a waiver, a close scrutiny of all the surrounding facts shows that no effective waiver was achieved. In this regard, we note that the pertinent provisions of the collective-bargaining agreement provided that job stewards shall be ap- pointed by the business agent. The day after O'Toole reported back to work and was informed by Foreman Lanzone that he was not to be stew- ard, Business Agent Scarlatos went to the jobsite and insisted that if O'Toole continued to work he would be the steward. Contrary to the judge, con- sidering Gross' remarks in his conversation with Burg in light of Scarlatos' adamant position that O'Toole would be the steward and given Scarlatos' authority under the agreement to appoint the stew- ard, we find that the evidence as a whole does not establish a clear and unmistakable waiver of O'Toole's statutory rights.5 In these circumstances, we conclude that the Re- spondent violated Section 8(a)(1) by implicitly threatening O'Toole with discharge when Mucci and Burg told O'Toole he could not continue to work if he insisted on his protected right to act as union steward and violated Section 8(a)(1) and (3) by conditioning O'Toole's ' continued employment on his relinquishing his right to act as union stew- ard. It is clear that, but for O'Toole's and Scarla- tos' insistence that O'Toole act as union steward, the Respondent would have employed O'Toole from 4 November until the issuance of the arbitra- tors' award about 7 March 1983. Accordingly, we shall order the Respondent to cease and desist from its unlawful conduct, to make whole O'Toole for any losses resulting from its 'unlawful' conduct for the period from' 5 November 1982 to about 7 March 1983, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in 5 Our dissenting colleague has misconstrued our analysis of this issue Contrary to his contention, we are not passing on the relative authority of Gross vis-a-vis Scarlatos to enter into an agreement attempting to waive O'Toole's rights To reiterate, we find only that, even assuming that the Union could have waived O'Toole's rights, an effective waiver of O'Toole's rights has not been demonstrated on the facts of this case. ACES MECHANICAL CORP. 931 Florida Steel Corp., 231 NLRB 651 (1977),' and to post an appropriate notice. ORDER The National Labor Relations Board orders that the Respondent, Aces Mechanical Corp., Lake Success, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to discharge employees who insist 'on their right to act as union steward. (b) Conditioning the employment of employees upon their relinquishing their right to act as union steward. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make whole Steven J. O'Toole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the Decision and Order. (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facility in Lake Success, New 'York, copies of the attached notice marked "Ap- pendix."6 Copies of the ni.-Jtice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing 'within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting. I agree with the judge that the Union clearly, unmistakably, and permissibly waived employee Steven O'Toole's right to serve as steward when its president, William Gross, negotiated O'Toole's 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals ]Enforcing an Order of the National Labor Relations Board." temporary reinstatement pending the outcome of arbitration over his discharge. Consequently, the Respondent did not violate Section 8(a)(3) and (1) of the Act by insisting that O'Toole could not return to work unless he complied with this waiver agreement. The crux of my colleagues' extraordi- nary reversal of the judge's waiver fording is that Gross, the president of a major Plumbers local and the official who led the Union's team at the joint arbitration committee meeting , lacked the authority within his organization to make this kind of interim agreement with the Respondent. Instead, the ma- jority finds that a business agent, Stratis Scarlatos, was the only union official with the authority to waive O'Toole's right to be 'a steward, or at least could veto Gross' agreement towaive. The only specific evidence mentioned in support of the majority's view is: (1) Scarlatos' personal 'in- sistence on O'Toole's postreinstatement service as steward, and (2) a brief conventional collective-bar- gaining provision identifying which business agent has the ministerial steward-appointment power for a particular jobsite. This evidence certainly does not establish that Scarlatos, rather than Gross, had superior or exclusive authority over employees' rights to be stewards. There may well be labor organizations where tit- ular presidents are figurehead subordinates to busi- ness agents or other officers, but I see no proof of such an arrangement here. Neither, apparently, did the, General Counsel, who does not contest in ex- ceptions either Gross' capacity to agree or the judge's fording that Gross did agree that O'Toole would' not be a steward if temporarily reinstated. The General Counsel contends that the agreement made was legally ineffective. Although my colleagues have avoided the legal question posed by resorting to the artifice of find- ing no clear and unequivocal waiver, I would agree with the judge that the Union could waive O'Toole's right to' serve as steward under the cir- cumstances of this case. There has been no show- ing that this temporary waiver of one individual's right to serve as a steward, in exchange for his re- instatement pending arbitration of his discharge, was an arbitrary or discriminatory action in breach of the Union's duty of fair representation. This waiver differed substantially from a permanent sur- render of the right to serve as steward or to pursue a grievance or unfair labor practice charge. More- over, the Respondent's agreement to such a waiver as a condition to reinstatement was supported by a compelling justification based on legitimate consid- erations: (1) Union President Gross initially pro- posed the waiver in his negotiations with the Re- spondent's president Norman Burg; (2) Gross like- 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wise stressed the possibility of a wildcat strike if O'Toole did not return to work; and (3) the Re- spondent believed justifiably, in light of the subse- quent, award-that it had validly discharged O'Toole. I cannot understand why the General Counsel and my colleagues here believe that the Act re- quires them to interfere with an attempt by private parties to reach a practical interim accommodation without resort to legal process in a volatile labor situation, while preserving the arbitral route to de- finitive resolution of .O'Toole's status. The policies and purposes of the Act are better served by Board encouragement of such conduct, and I would con- sequently adopt the judge's recommendation to dis- miss the complaint.I I I find no need to decide whether the Board should dispose of the 8(a)(3) issue by deferring to the joint committee's arbitration award. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT threaten to discharge you if you insist on your right to act as union steward. WE WILL NOT condition your employment on your relinquishing your right to act as union stew- ard. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole Steven J. O'Toole for any loss of earnings and other benefits resulting from our refusal to employ him, less any net interim earnings, plus interest. ACES MECHANICAL CORP. Sandra Grossfeld, Esq., for the General Counsel. Anthony L. Tersigni, Esq. (Meyers, Tersigni, Kaufman, Lurie, Feldman & Gray), for the Respondent. DECISION STATEMENT OF THE FACTS ARTHUR A. HERMAN, Administrative Law Judge. This case was tried before me in New York, New York, on 8, 9, 15, and 16 November and 10 December 1984. On 12 November 1982 Steven J. O'Toole, an individ- ual, filed a charge against Aces Mechanical Corp. (Re- spondent), alleging a violation of Section 8(a)(1) of the Act, in that Respondent discharged O'Toole about 17 September 1982 because he engaged in protected con- certed activity. On 28 December 1982 the Acting Re- gional Director for Region 2 deferred further proceed- ings in the case pending completion of an arbitration pro- ceeding involving the same subject matter. On 28 Febru- ary 1983 evidence was presented by the parties to a tri- partite panel of arbitrators. On 7 March 1983 the arbitra- tors, by a vote of 2 to 1, issued an award finding just cause for the discharge of O'Toole. On 9 July 1984 the Regional Director' for Region 2, acting on the Region's prior deferral, albeit' 16 months after the arbitration award, found that: The evidence fails to establish that a complaint is warranted alleging the Employer violated the Na- tional Labor Relations Act by discharging you on September 17, 1982, as alleged by you. The proprie- ty of your discharge was the subject of an arbitra- tion proceeding in which the arbitrator concluded that the Employer's decision to terminate your em- ployment was justified. He further determined that your Employer did not seize upon your alleged ab- sence from the jobsite as a pretext'to discharge you because you may have engaged in possible protect- ed activities under the National Labor Relations Act. Further, it appears that the arbitration pro- ceeding was fair and regular on its face, the arbitra- tor was presented generally with the facts relevant to the underlying unfair labor practice issue, and his decision does not appear to be repugnant to the policies and purposes of the Act. See Spielberg Man- ufacturing Company, 112 NLRB 1080 (1955); Olin Corporation, 268 NLRB 573 (1984). In view of the foregoing, I am refusing to issue a complaint re- garding this portion of your charge. The remaining portion of your charge relating to your discharge of November 5, 1982, is being retained for further processing.' I Inasmuch as O'Toole's charge is quite specific in referring only to his 17 September 1982 discharge, I must presume that the Regional Director, in referring to the "remaining portion of your charge relating to your dis- charge of 5 November 1982," is relying on the "By the above and other acts" catchall clause printed on the face of the charge, as the basis for processing the second alleged discharge Also, it is well established that the General Counsel is not confined in issuing his complaint to the allega- tions enumerated in the charge. See NLRB v. Globe Wireless, 193 F 2d 748, 752 (9th Cir 1951). ACES MECHANICAL CORP. 933 Thereafter, on 25 July 1984, a complaint issued> alleging that Respondent violated Section 8(a)(1) and (3) of the Act by threatening O'Toole with discharge and by dis- charging O'Toole on 5 November 1982. At the trial all parties were given full opportunity to participate, and subsequently the General Counsel and Respondent filed thorough briefs. On the entire record in the case, and from my observa- tion of the witnesses and their demeanor while testifying under oath, and after careful consideration of the briefs, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation with an office and place of business located at Lake Success, New York, is, and has been at all dimes material, engaged as a plumbing, heating, ventilating, and air-conditioning con- tractor in the building and construction industry and, at all times material, Respondent performed the contracting work at the Dag Hammarskjold Towers in New York, New York. During the fiscal year 1982 Respondent pur- chased and received goods and materials valued in excess of $50,000 directly from points located outside the State of New York. Based on the above facts, which Respond- ent admits, I find that Respondent has been, at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondent does not deny, and I find that Local Union 2 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL- CIO (Local 2) is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES In March 1982 Respondent was performing certain plumbing, heating, ventilating, and air-conditioning work at the Dag Hammarskjold Towers in New York City, in connection with the construction of a 44-story condo- minium (the Towers). The general contractor on the site was Fuller Construction. Respondent' a member of the Association of Contracting Plumbers of the City of New York, Inc. (the Association), was subject to the provi- sions of a collective bargaining agreement between the Association and Local 2. Steven O'Toole, a journeyman plumber for 20 years and a member of Local 2 for 20 years, was hired by Re- spondent in March 1982 and assigned to work at the Towers. He reported for work to Foreman Angelo Lan- zone. The field superintendent responsible for the Towers job was Joe Mucci.2 At the end of April or early May, O'Toole was appointed shop steward on the Towers job by Local 2's business agent, Straits Scarlatos. As shop steward it was O'Toole's duty to oversee and 2 Respondent's president is Norman H Burg maintain - adequate sanitary conditions and safety condi- tions for the employees, and to make sure that the terms of the collective-bargaining agreement were adhered to. The record is replete' with uncontradicted evidence that, during O'Toole's tenure as shop steward on the Towers project, he was a most active shop steward.3 Al- though conducting daily safety inspections on the project, O'Toole noticed many faults, i.e., a lack of sani- tary facilities, poorly lit hallways, and broken elevator doors. He reported these violations to Lanzone and Fuller at the weekly safety meetings of shop stewards for all the trades on the job. In addition, O'Toole notified OSHA of these defects, and this resulted in an inspector coming down to the job.4 Moreover, O'Toole sought to enforce the collective-bargaining agreement by pursuing grievances that resulted in the payment of extra wages to Respondent's plumbers. Needless to say, neither Re- spondent nor Fuller was too ,happy with O'Toole as shop steward, and this manifested itself in arguments between O'Toole, Mucci, and Lanzone, and the latter complain- ing to Business Agent Scarlatos about the aggressive shop steward, O'Toole.5 On 15 September 1982, after lunch, Lanzone looked for O'Toole and could not locate him on the job. He and his deputy foreman, Harvey Newman, then went looking in neighboring bars for O'Toole, but to no avail. When they returned to the project; they met O'Toole in the lobby. After some discussion about O'Toole's where- abouts, Lanzone told O'Toole that he was fired and, on 17 September 1982, when Respondent offered O'Toole his check, O'Toole refused it. Pursuant to the collective-bargaining agreement, O'Toole filed a grievance on his discharge. About 1 week later there was an on-the-job meeting arranged by the Association and Local 2 to determine the legitimacy of O'Toole's discharge. Representatives of Respondent and Local 2, and O'Toole were present, but nothing was resolved, except to schedule an arbitration meeting for a later date 6 On 3 November 1982 a joint arbitration committee meeting of the Plumbing Industry Board was held at the offices of the Plumbing Industry Board (see G.C. Exh. 4) to hear testimony concerning O'Toole's discharge and to determine if it was justified. The management team was 3 It is undisputed that O'Toole's predecessor, Herb Ritter, was an inac- tive shop steward 4 This almost caused a shutdown of the project. 5 The record clearly establishes that both Mucci and Lanzone, are su- pervisors within the meaning of Sec 2(11) of the Act. Mucci, as general superintendent for 12 years with Respondent, oversees the work at sever- al of Respondent's projects, hires and transfers employees as needed, and meets with Local 2 as representative of Respondent Lanzone assigns work to employees and is Respondent's senior person on the jobsite He directs and corrects employees in their daily tasks, although performing no plumbing work himself Clearly, both Mucci and Lanzone are supervi- sors in Respondent's employment structure 6 The collective-bargaining agreement, referred to above, provides for a joint arbitration committee consisting of an equal number of representa- tives from management and labor In the event the dispute is not re- solved, then either party may request arbitration with each side designat- ing an arbitrator, and the two arbitrators designating a third arbitrator, if the two arbitrators are unable to agree on a third arbitrator, then the American Arbitration Association shall designate the third arbitrator. (See G.C. Exh. 10, p 47, art. XXVI, sec 102 ) 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD headed by Lawrence Felder, and representing labor was the president of Local 2, William Gross. After hearing the testimony of Muccie, Lanzone, and O'Toole, and after much discussion and separate caucuses by manage- ment and labor, the question was put to a vote, but it re- sulted in a deadlock, and the meeting adjourned. After the meeting ended, Gross, O'Toole, and Scarla- tos returned to Gross' office. According to O'Toole: A. We went back to the local union offices and Mr. Gross had a conversation with, I believe, Norman Burg on the phone. There were several people in the office and everybody was having their own discussions while Willie Gross was having his discussion with, I assume, Norman Burg. In any event, I was with Scott Scarlotis and I was told to report back to the job on the 4th. Q. Who told you that? A. Scott Scarlotis. JUDGE HERMAN: What did he say to you? THE WITNESS: He told me I'm going back to work. Everything was straightened out. Q. Did this happen on November 4th? I'm sorry on November 3rd that is or the same day? A. November 3rd. Q. After Mr. Scarlotis told you that you were going back was anything else said to you by either Mr. Gross or Mr. Scarlotis? A. Not that I recall. I was elated that I was going back to the job and that everything had been straightened out. Q. Was anything said to you about whether you were to be the shop steward? Did that subject come up? A. I was under every intention that I was going back as the shop steward. Q. No, I said- JUDGE HERMAN: We're not interested in what you thought. Did somebody say this to you? THE WITNESS: The delegate told me I was going back as the shop steward. According to Scarlatos: THE WITNESS: I was in (Gross') office- Ms. GROSSFELD: Who was present? THE WITNESS: Mr. O'Toole was present, myself, and Mr. Gross was in a conversation on the phone with, I believe, Mr. Burg. JUDGE HERMAN: When you say you believe Mr. Burg why do you believe that to be so? THE WITNESS: Because Mr. Gross said I'll call Norman Burg right now, get him on the phone, and they were discussing the situation. THE WITNESS: Mr. Gross said to me to tell Steve O'Toole to return to that job tomorrow. I believe it was a Wednesday we were in his office. Steven O'Toole was supposed to return to the job on Thursday. In fact I think the date was-now it comes to me. November 5th or 6th. Is that- JUDGE HERMAN: You don't ask questions. You are here to answer questions. THE WITNESS: Anyway, Steve O'Toole was to return to the job Thursday. Q. Thereafter did you speak to Mr. O'Toole? A. Yes, he was there. I said to Steve go to the job tomorrow. Return to the job to start work. JUDGE HERMAN: Do you remember the exact words that Mr. Gross said to you? THE WITNESS: He told me to have Steve O'Toole return to the job and everything is going to be taken care of. Q. By the way, when Mr. Gross spoke to you did the subject of shop steward come up? JUDGE HERMAN: The subject of what? Ms. GROSSFELD: Did the subject of shop steward come up? THE WITNESS: No, not at that conversation, no. Q. Now you said thereafter you spoke to Mr. O'Toole and- A. Informed Steve to return to the job, go to work. Q. What was your understanding- JUDGE HERMAN: Did Mr. O'Toole ask you, am I returning to the job as shop steward or just to the job? THE WITNESS: I don't recall him asking me be- cause that was never in the conversation at that time. Could I rephrase-something came to me. JUDGE HERMAN: Are you refreshing yourself now; as to what else was said? THE WITNESS: Yes. JUDGE HERMAN: What else was said? THE WITNESS: I told Steve you go to the job Thursday and I will be there Friday to inform the men that you are still the shop steward. That was the conversation. The following is Burg's version of his conversation with Gross: THE WITNESS: Willie Gross called me. He said, "Norman, I want you to take back O'Toole." I said, "No." He said, "Norman, come on. You've got to take him back." I said, "Willie, no. I'm not going to take him back." You have to know Willie Gross, because the conversation can- Ms. GROSSFELD: Objection. JUDGE HERMAN: Just tell us what was said. THE WITNESS: It repeats itself many times. Take him back-no. Willie, I'm not going to take him back. "Why don't you want to take him back?" "Willie, you heard all of that, why I don't want to take him back." "Norman, there's going to be trouble." "Willie, there is no trouble. The men are working." "You've got to take him back. "Willie, I don't have to take him back. I am not going to take him back." "Norman, the men are going to leave the job." "Willie, I don't believe that. I don't believe you said it. They can't leave the job. It will be illegal." He said, "I know that, but they're going to leave it anyway." ACES MECHANICAL CORP. I said, "Willie, I don't believe you 'would do that." He said, "I am not doing it. Scarlotis is doing it." I said, "Willie, Scarlotis is only a, delegate. You're the president of the Union." "I know that Norman, and I'm having; trouble with Scarlotis." I said, "I don't give a damn about your trouble with Scarlotis. I don't want O'Toole and you're not going to tell the men to leave the job." He said, "Norman, I'm not going to tell them to leave the job. They're going to leave the job." I said, "Willie, they leave the job, I got a prob- lem. I have a bond on Ihis job. Close to $2 million dollars. I can't afford the other trades to run ahead of me. I can't afford to let the other trades claim that I held them back. This is impossible." He said, "You have no choice." I said, "Willie, what are you saying?" He said, "Norman, they're going to walk. And' I'm not going to be able to stop them." Let O'Toole come back. He is not the steward. I said, "I don't want O'Toole back." He said, "Norman, he is not the steward." I said, "Willie, what happened?" He said, "Well, you fired him. He comes back as a journeyman working man. He'll pick up the tools and he will go to work." Willie, I don't want him on the job. "Norman, you have no choice." I said, "Willie, if you're really telling me those men are going to walk and he comes back as a working journeyman, he picks up the tools and goes to work." He said, "I want you to tell Angelo and Mucci that." "Tell them what?" "Tell them he's coming back. He is not the steward. And that he is going to pick up the tools and he's going to go to work and not to make an issue." I said, "All right. What about O'Toole?" "Tell him the same thing." I said, "Okay, Willie, but I'm going to- Ms. GROSSFELD: I'm sorry. What about after, "What about O'Toole?" THE WITNESS: I said, "Okay, Willie." Ms. GROSSFELD: Then what about O'Toole? JUDGE HERMAN: He'g going to tell O'Toole the same thing. THE WITNESS: Right. I said, "Okay, Willie, but I am going to Arbitra- tion, Willie, because I don't want that man on my job. And I want the whole damn thing taken care of once and for all. I have the right to do what I did. And, I don't want him on the job and you're telling me that the men will walk, and I can't afford that to happen." I then got a hold of Angelo and Joe Mucci and I told them that he's coming back to the job. That he is not the steward. He'll pick up the tools. He'll go to work.7 A The General Counsel served a subpoena on Gross on 29 October 1984 to testify at the hearing, but Gross did not appear, and the General Counsel chose not to seek subpoena enforcement In fact, I granted the General Counsel's adjournments of the hearing from 9 to 15 November 1984 and from 16 November to 10 December 1984 in order to give her an opportunity to produce Gross 935 According to Burg, he then informed Lanzone and Mucci that O'Toole was coming back, but not as the steward, and that Gross was coming to the jobsite to ap- point a new steward. / The following day, 4 November 1982, O'Toole re- turned to the jobsite, and was warmly greeted by the other plumbers. At that point, Lanzone walked into the shanty where the men were dressing to go to work, and announced to the men that O'Toole was returning to work as a journeyman plumber, and not as shop steward. O'Toole disputed this, and immediately called the Union from the foreman's shanty. Because Scarlatos was not available; O'Toole was advised to work that day, and he was told that Scarlatos would be down to straighten the matter out. The next day, 5 November 1982, Scarlatos came to the jobsite very early and met with' Mucci who insisted that O'Toole could only come back as a plumber, not as ,a shop steward. Scarlatos disputed it and O'Toole was summoned from where he was working to the shanty on the second floor. Present were Burg, Mucci, Lanzone, Scarlatos, and O'Toole, among others. Burg stated that he had an agreement with Gross that O'Toole could only come back on the job as a journeyman plumber, not as shop steward. Scarlatos insisted that O'Toole would be the shop steward. The conversation went back and forth with neither side giving in. Scarlatos then, told the other plumbers that Respondent will not take O'Toole back as the shop steward, and he and O'Toole left the jobsite. Mucci confirmed the fact that Scarlatos spoke to the men and that he and O'Toole left the job. Burg claims that he did not hear what Scarlatos said to the other plumbers, but that when Scarlatos came out of the shanty, he and O'Toole walked off the job, and shortly thereafter, the rest of the men walked off the job. O'Toole testified that; Burg was irritated, that he tried to convince O'Toole to go to work as a plumber, that Burg threatened O'Toole that he "would suffer grave conse- quences over this," and that Burg fired him. O'Toole also stated that Lanzone told O'Toole that his pay would be mailed to him, and "with that we left the job."8 Another attempt at arbitrating the dispute was made on 9 February 1983 at the office of the Plumbing Indus- try Board. Present were Louis Levine, the third-party ar- biter, Felder for Respondent, Gross for Local 2, and Morris Olshina, recorder. After hearing Gross and Felder present their arguments, Levine decided to sched- ule another meeting.9 And so, on 28 February 1983, a full arbitration took place at the Plumbing Industry Board. Present were Levine, Olshina, Mucci, Scarlatos, O'Toole, and two observers, John J. Murray and John O'Donnell. Levine 'heard testimony from O'Toole, Mucci, and Scarlatos, and announced that another meet- ing was scheduled for the three arbiters on 7 March 1983.10 On the latter day, an award by a two-to-one a It is this incident that is alleged by the General Counsel to be the discharge in dispute. 9 See G C. Exh 6 io See G.C. Exh 5 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vote (Gross dissenting) issued, "Based on the substantial credible evidence of the case as a whole, there was just cause for the discharge of Grievant Steven O'Toole."" Analysis and Conclusions The initial question for consideration is whether the Board showed deference to the arbitration award. In Spielberg Mfg. Co., 112 NLRB 1080 (1955), the Board stated that it would defer to an arbitration award already rendered when all the parties agreed to be bound by arbitration, the arbitration proceeding was fair and regular, and the arbitrator's award was not repugnant to the policies of the Act. The Board added a fourth crite- ria in Raytheon Co., 140 NLRB 883 (1963), which re- quired that the issue involved in the unfair labor practice case before the Board must have been presented to and considered by the arbitrator. In Olin Corp., 268 NLRB 573 (1984), the Board held that it would defer to arbitration decisions as long as (1) the contractual issue is factually parallel to the unfair labor practice issue; (2) the arbitrator was presented gen- erally with the facts relevant to resolving the unfair labor practice; and (3) the decision is susceptible to an in- terpretation consistent with the Act. Thus, a determination must first be made regarding the scope of the arbitration. The General Counsel, contrary to Respondent, contends that the arbitration award was limited only to the 17 September discharge and that the 5 November discharge was never resolved. Respondent argues that because evidence was presented to the three arbitrators at the arbitration hearing on 9 February 1983, and again on 28 February 1983, to Arbiter Louis Levine, regarding the 5 November incident, that was sufficient to bring the case within the ambit of the Olin case, and de- ferral is appropriate. It should be noted that under Olin there is a strong presumption in favor of deferral, and thus, the burden of overcoming the presumption falls on the party seeking to avoid the arbitration award. An examination of the minutes of both the 9 and 28 February hearings sustains Respondent's position.12 The 9 February minutes state, in pertinent part, "He [O'Toole] was offered a job as a journeyman but insisted he was still the steward. The Business Agent told the men not to ' work without a steward. The men left the job." And, the minutes of the 28 February hearing state: It was Mr. O'Toole's understanding he was back as a steward but the foremen said no, you work as a journeyman. The Business Agent met with the con- tractor, Mr. Norman Burg, who stated that if it was Mr. O'Toole's intent to be the steward he didn't want him back, and Mr. O'Toole left the job. The General Counsel contends nevertheless that the arbitrators did not adequately consider the alleged unfair labor practice, involved. Yet, the General Counsel, on whom the burden rests' to try to convince me not to defer, has failed to offer any concrete evidence to the effect that the arbitrator failed to consider the 5 Novem- 11 See Jt. Exh 2 12 See G C. Exhs. 5 and 6. ber incident in their decision. The complaint alleged that Respondent had discriminatorily discharged O'Toole on 5 November because he refused to refrain from serving in the position of job steward. Yet, this allegation is so intertwined with the original discharge of O'Toole on 17 September that the arbitration proceeding that resulted from the earlier discharge could not help but discuss later events including the 5 November incident. In truth, the arbitrators' one sentence determination falls far short of an adequate explanation of what they did consider and what they failed to consider; but in the absence of evi- dence to the contrary, I must accept the fact that be- cause the minutes did refer to the 5 November incident, due consideration was given to the implications of that incident in reaching their determination. In Altoona Hospital, 270 NLRB 1179 (1984), the Board, citing Olin, stated "that an arbitrator has adequately con- sidered an unfair labor practice issue if (1) the contrac- tual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. The burden is now on the party opposing deferral to demonstrate the defects in the arbitral process or award." And, reiterating its view on the "clearly repug- nant" standard set forth in Spielberg, the Board made it clear that an award need only be "susceptible to an inter- pretation consistent with the Act. When that requirement is met we find the award not `palpably wrong' and we will defer." Also, in Chemical Leaman Tank Lines, 270 NLRB 1219 (1984), the Board, while agreeing with the adminis- trative law judge's decision, disavowed his comment that it did not appear that the arbitrator considered the vital issue. Rather, the Board stated quite clearly in footnote 3, that so long as the arbitrator heard the facts on the issue, "its decision effectively, although not explicitly, did decide the issue." I find the same to be true of the instant case. The con- tractual issue is factually parallel to the unfair labor prac- tice issue, the arbitrators were presented generally with the facts relevant to resolving the unfair labor practice, and the General Counsel has failed to demonstrate any defect in the award. Under the circumstances, I conclude that deferral to the arbitrators' award is warranted here, and I shall dismiss the complaint in its entirety. In the event, however, that it is found on appeal that deferral to the arbitrators' award is inappropriate, then the following is submitted as my analysis of the facts and my conclusions based on the merits of the case. The uncontroverted evidence in the instant case estab- lishes without a doubt that during his union stewardship, O'Toole was an aggressive and effective steward. He concerned himself as steward in many situations involv- ing the safety of his coworkers, alleged OSHA viola- tions, and made sure that the contractual obligations of Respondent inured to the benefit of the employees. It is also quite clear to me that Respondent was unhappy having O'Toole as the shop steward. And, when the op- portunity presented itself, Respondent, armed with the ammunition sufficient to sustain its action, chose to dis- charge O'Toole on 17 September and take its chances ACES MECHANICAL CORP. before a panel of arbitrators. Pursuant Fto Board law, the Region, which had before it an unfair labor practice charge filed by O'Toole concerning the 17 September discharge, decided to Dubo1 s the case and defer it "pending completion of the current arbitration proceed- ing which involves the same subject matter." 14 Subse- quently, the arbitrators' award issued on 7 March 1983, and based on Respondent's reasons for the discharge, i.e., drinking at a bar past his lunch period, returning from lunch late, being pugnacious and threatening the foreman on the job, and failing to perform his services within the bounds of his trade, and after finding O'Toole's explana- tion not persuasive, the arbitrator found that there ,was just cause for the discharge of O'Toole. Thereafter, based on Spielberg and Olin, the Region found, insofar as the 17 September discharge was concerned, that the arbi- tration was fair and regular, that the panel was presented generally with the facts relevant to the underlying unfair labor practice issue, and that its decision was not repug- nant to the Act, and therefore refused to issue a com- plaint; however, it retained the charge to further process the 5 November discharge. Thus, whatever transpired prior to 17 September to cause the discharge of O'Toole is of no concern to me. The Region found itself bound by the arbitration award, refused to issue complaint on the September discharge, and accepted the decision that O'Toole was discharged for just cause on 17 September. The remaining issue involves only the 5 November al- leged discharge, and the telephone conversation that took place on 3 November between Gross, the president of Local 2, and Burg, Respondent's president, is critical. It is essential to remember that Gross instigated the tele- phone conversation to try to get O'Toole back on the job; O'Toole had been out of work for almost 2 months and the arbitration was still months away. In order to bridge the gap, Gross sought to persuade Burg to put O'Toole back to work on a temporary basis, pending the outcome of the arbitration. Burg testified, quite convinc- ingly, as to what transpired, and'his testimony is quoted, supra. As stated above, footnote 7, Gross, although sub- poenaed, did not testify.' Under the circumstances, I accept, without qualification, the text of Burg's testimo- ny, and deduce from it the fact that despite Burg's prot- estations to reinstating O'Toole, Gross offered the sug- gestion that O'Toole come back to the job as an employ- ee only, and not as shop steward, and this persuaded Burg to reinstate, O'Toole pending the outcome of the arbitration. Both O'Toole and Scarlatos testified to over- hearing Gross talk to Burg, but only after some prod- ding, did each of them state that O'Toole was returning as shop steward. Therefore, I do not credit their testimo- ny, and receive only Burg's version of what transpired. Thereafter, on 4 and 5 November, a dispute arose as to O'Toole's status on the job pending the outcome of the arbitration. Burg and his supervisors insisted that O'Toole come back only as a journeyman, whereas O'Toole and Scarlatos wanted O'Toole as shop steward. Once again,' Gross, who was scheduled to be at the job- site, did not appear. After haggling back and forth, with 13 Dubo Mfg. Corp, 142 NLRB 431 (1964) 14 See R Exh 4, dated 28 December 1982. 937 neither side giving in, O'Toole, Scarlatos, and the other employees walked off the job on 5 November. The General Counsel contrary to Respondent, con- tends that Respondent, by not reinstating O'Toole as shop steward on 5 November violated O'Toole's right not to waive his statutory right to be shop steward. I dis- agree with the General Counsel. The threshold question is whether a union can waive an employee's statutory rights. In Prudential Insurance Co.,15 the Board addressed the waiver issue and redefined its position. It quoted the Su- preme Court as follows: In Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983), the Supreme Court explicitly reaffirmed the principle that a union may waive an employee's statutory rights. As the Court stated: Such waivers are valid because they "rest on `the premise of fair representation' and presuppose that the selection of the bargaining representative `remains free."' Relying on the same premise, the Court noted that unions are charged with serving the entire bargain- ing unit and therefore choose to bargain away cer- tain statutory protections in order to secure other gains. As a result, even "individual rights may be waived by the union so long as the union does not breach its duty of good-faith representation." The test approved by the Supreme Court is whether the waiver of a statutory right is "clear and unmistak- able." Clearly, then, the entire premise underlying the waiver theory is that of fair representation. So long as the inter- ests of the union and the employees it represents are not adverse to each other, and the waiver is clear and unmis- takable, such waiver should not be found by the Board to be violative of the Act. In applying these principles to the instant case, I find that Local 2's president, Gross, was perfectly within his rights as the bargaining representative of the employees to strike a bargain with Respondent in order to get O'Toole reinstated pending the outcome of the arbitra- tion. I find that the interests of Local 2 and O'Toole were not adverse to each other, and Gross' offer to Burg was clear and unmistakable. The alternative would only keep O'Toole in an unemployed situation, having to await the outcome of the arbitration. Certainly, Respond- ent was under no obligation to reinstate O'Toole until so ordered by the arbitrators' award. It was only for the purpose of maintaining labor peace that Respondent con- sented to reinstate O'Toole on the terms suggested by Local 2. Under the circumstances, I find both Local 2's waiver of O'Toole's right to be shop steward, and Respondent's insistence that O'Toole be reinstated only as a journey- man pending the outcome of the arbitration, not violative 15 275 NLRB 208 (1985) 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act. Accordingly, I shall dismiss the complaint in ' 2. Respondent has not engaged in any violation of Sec- its entirety. tion 8(a)(1) and (3) of the Act as alleged in the com- plaint. CONCLUSIONS OF LAW [Recommended Order for dismissal omitted from pub- 1. Respondent is an employer within the meaning of lication.] Section 2(2) of the Act, and is engaged in commerce as defined in Section 2(6) and (7) of the Act.