Construction And General Laborers' Union Local No. 534, Laborers' International Union Of North America, Afl-Cio-Clc (Butler County Area Contractors Association)

202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Construction and General Laborers' Union Local No. 534, Laborers' International Union of North America, AFL-CIO-CLC (Butler County Area Contractors Association) and Darryl Thomas. Construction and General Laborers' Union Local No. 534,, Laborers' International Union of North America, AFL-CIO-CLC (Danis Indus- tries Corporation, B. G. Danis Company, Build- ing Division) and Charles Baldwin. Cases 9- CB-5643 and 9-CB-5694 31 July 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 24 October 1984 the National Labor Rela- tions Board issued its Decision and Order in this proceeding' in which it found, inter alia, that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by arbitrarily departing from objective hiring hall procedures in referring James Crawford to a position as union steward out-of-turn and ahead of Darryl Thomas, who had a higher priori- ty under the contract's written referral procedure, and by threatening employees with reprisals if they filed unfair labor practice charges with the Board. Upon an application for enforcement of the Board's Order, the United States Court of Appeals for the Sixth Circuit, on 11 December 1985, re- fused enforcement of the Board's Order with re- spect to the foregoing findings and remanded the case to the Board for further proceedings consist- ent with its opinion.2 With respect to Crawford's referral, the court questioned the Board's conclu- sion that the appointment of a steward could not be used as a device to evade specific referral proce- dures in the terms of the collective-bargaining agreement which did not specifically provide for such a steward referral exception. The court found error in the Board's limitation of contract interpre- tation to the "four corners" of the contract, and it remanded the case to the Board for consideration of whether the agreement incorporated as the "common law of the shop" a practice of excepting stewards from the normal referral process. With re- spect to the threat of reprisals issue, involving a statement by the Respondent's president that filing unfair labor practice charges would lead to an in- vestigation that could hurt "a whole lot of people," the court held that a prediction of consequences beyond the party's control was not coercive and reversed the Board's finding of a violation. After the remand, the General Counsel filed a statement of position. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has accepted the court's remand and recognizes the court's decision as the law of this case.3 After further review of the entire record and the General Counsel's statement of position, we conclude that the Respondent did not violate Sec- tion 8(b)(1)(A) and (2) by referring James Craw- ford to a position as union steward ahead of Darryl Thomas. The court held that in the absence of a specific contractual provision regarding the ap- pointment of stewards, the Board is not confined to the "four corners" of the agreement. In this regard, we note the uncontroverted testimony of the Re- spondent's business manager Ross that the Re- spondent's practice for the past 30 years has been to refer stewards independently of the normal re- ferral process. This testimony is highly probative, and therefore we find, contrary to the judge, that the Respondent's appointment of Crawford as steward was not an arbitrary departure from its longstanding hiring hall procedures.4 Thus, we conclude that the Respondent did not violate the Act by its out-of-turn referral of steward Craw- ford.5 Accordingly, whether such practice may techni- cally or correctly be viewed as part of the "common law of the shop" is unnecessary to our disposition of this case. ORDER The National Labor Relations Board orders that the Respondent, Construction and General Labor- ers' Union Local No. 534, Laborers' International Union of North America, AFL-CIO-CLC, Mid- dletown, Ohio, its officers, agents, and representa- tives, shall take the action set forth in the Order re- ported at 272 NLRB 926 (1984), as modified by de- leting paragraph 1(c) and relettering the subsequent paragraphs accordingly. 1 272 NLRB 926. 2 NLRB v. Laborers Local 534 (Butler County Contractors), 778 F 2d 284 (6th Cir 1985) The court affirmed the Board's findings that referrals of three other workers constituted arbitrary departures from the hiring hall referral procedures in violation of Sec 8(b)(1)(A) and (2) and en- forced the Board's Order regarding those referrals 3 Accordingly, we shall modify our original Order by deletmg refer- ence to the alleged threat of reprisals found lawful by the court See Plumbers Local 520 (Jesse N. Aycock, Inc.), 282 NLRB 1228 (1987); Painters District Council 2 (Paintsmiths), 239 NLRB 1378 (1979), enf. denied 620 F 2d 1326 (8th Cir. 1980). s Consistent with this decision, the Respondent will have no remedial liability to Thomas for the 10 May 1983 referral of Crawford 285 NLRB No. 30 LABORERS LOCAL 534 (BUTLER COUNTY CONTRACTORS) CHAIRMAN DOTSON, dissenting in part. I would reaffirm the Board's finding in its origi- nal Decision and Order that there is no contractual basis for the Respondent's out-of-turn referral of steward Crawford. Contrary to my colleagues, I would not find that the scintilla of evidence at issue here-a self-interested union agent's general- ized and partial hearsay statement that he dis- patched experienced stewards from the Respond- ent's hiring hall without regard to their place on referral lists and that the Union "was ran that way for 30 years" justifies reinterpreting the parties' collective-bargaining agreement under "law of the shop" principles to include an implicit steward re- ferral exception to the explicit contractual rules for referral. Article II of the 1982-1984 contract between the Union and the Butler County Contractors Associa- tion (the Association) governed exclusive hiring hall referral procedures at material times here. The article extensively detailed those procedures in 18 separate sections. In sum, the contract provided for referral of job applicants from five hiring hall lists of descending priority in the order of their place on a list. Section 13 of article II states that "the order of referral set forth above shall be followed" with only two express exceptions: an employer's request for an employee possessing special skills and abilities, and an employer's request for an em- ployee who had worked for that employer within the past 6 months. Article II makes no reference to the referral of stewards. Article X, entitled "Stewards and Griev- ance Procedures," provides simply that "each job shall have a working Steward appointed by the Union." This article makes no reference to the hiring hall referral system described in article II. At the hearing in this case, the Respondent's business manager James Ross repeatedly testified about the existence of a longstanding unwritten ex- ception to the contractual hiring hall rules. Ac- cording to Ross, the Respondent had a 30-year past practice of referring stewards with experience to jobsites without regard to their place on the hiring hall lists. As an initial matter, I find Ross' testimony to be extremely unreliable. Indeed, the judge in the deci- sion originally adopted by the Board described Ross' testimony as "at times confusing, unclear, in- complete and vague," specifically discrediting him where contradicted by more credible witnesses. Al- though no witness controverted Ross' claim of a 30-year practice of out-of-turn steward referrals, the absence of directly conflicting evidence is no reason per se to credit his claim. Ross had himself been the Union's business manager for only 7 203 years, so that without further substantiation his tes- timony about a system he inherited is entitled to little weight. Even more significant, however, Ross discussed only three specific examples of out-of- turn steward referrals under the allegedly long-es- tablished exception. One of those examples, the re- ferral of Carl Logan, was made as a favor in light of his financial difficulties, not because he was an experienced steward. A second example involved the steward referral of Ross' own son, who appar- ently had no prior steward experience. Only the third example, the currently disputed referral of steward Crawford, is consistent with Ross' claim of a 30-year practice of referring experienced stew- ards apart from the general hiring hall list order. Under these circumstances, I would not credit Ross' claim. Even assuming the truth of Ross' testimony about the Union's steward referral practice, howev- er, I would find this evidence legally insufficient to warrant implying an exception to the specific and express contractual hiring hall procedures. In this regard, I believe that my colleagues have miscon- strued the "law of the shop" which the Sixth Cir- cuit directed the Board to consider. The essence of a contract, including a labor rela- tions contract, is the mutual understanding and agreement to terms by the contracting parties. Sec- tion 8(d) of the Act clearly embraces this concept. In interpreting a collective-bargaining agreement to ascertain exactly what the parties have agreed to, the Board is not necessarily bound by technical rules of contract law.' For instance, the Board should more readily refer to extrinsic evidence to clarify the intent of contracting parties. The focus of this evidentiary inquiry still remains the same: What did the parties mutually intend? In this context, the common law of the shop has evolved as a useful tool for contract interpretation. Speaking specifically of labor arbitrators, but with equal applicability to the Board and courts, the Su- preme Court referred to "the practice of the indus- try and the shop" as "equally a part of the collec- tive bargaining agreement although not expressed in it."2 Due to the extraordinary breadth of matters covered by such an agreement, "[g]aps may be left to be filled in by reference to the practices of the particular industry and of the various shops cov- ered by the agreement. Many of the specific prac- tices which underlie the agreement may be un- known, except in hazy form, even to the negotia- tors."3 ' See, e g , Timberland Packing Corp, 261 NLRB 174, 176 (1981), and cases cited there 2 Steelworkers v Warrior & Gulf Co, 363 U S 574, 581 (1980) 1 Id at 580 204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The law of the shop doctrine clearly did not ob- viate the need to limit a contract to mutually un- derstood and agreed to terms. The doctrine also does not impose a system of evidentiary evaluation where extrinsic evidence necessarily outweighs the language of an agreement. On the contrary, the more express and comprehensive a contract's defi- nition of a particular bargaining subject is, extrinsic evidence is less likely to affect the Board's interpre- tation of the parties' agreement on that subject.4 In the present case, the extensive and detailed terms of article II of the Union-Association con- tract leave no obvious "gaps" requiring reference to industry or shop practice. Furthermore, article X of the same contract makes clear that the negoti- ating parties expressly contemplated the role of stewards in their labor relations. Consequently, there is little basis to infer a latent ambiguity from the failure of article II to make express reference to the procedure for referring stewards from the hiring hall.5 Reviewing Business Manager Ross' testimony in light of the contract language, I note that he did not say that the steward referral exception was a generalized practice within the construction indus- 4 E.g, Electrical Workers IBEW Local 11 (Los Angeles NECA), 270 NLRB 424 (1984) 5 It is apparent from the Sixth Circuit's opinion in this case that it agrees with the Board's original finding, contrary to the Union's primary contention, that a steward exception cannot be based on the contract itself try or within the laborers' craft . He also did not say that any employers utilizing the Union's hiring hall referral system were aware that stewards were being referred without regard to their seniority on the hiring hall list. In addition, there is insufficient record evidence to establish that the Union publi- cized its steward exception or implemented it in such a way that employers or employee applicants knew or reasonably should have known about this alleged practice . Under these circumstances, I would find that Ross ' testimony, even if credible, is insufficient to outweigh the express terms of the parties' collective-bargaining agreement and to es- tablish a steward referral preference under the law of the shop doctrine. Moreover, for the reasons stated in my dissenting opinion in Plumbers Local 520 (Jesse N. Aycock, Inc.), 282 NLRB 1228 (1987), I would find an 8(b)(1)(A) and (2) violation for the Respondent's out-of-turn referral of steward Crawford even if the applicable collective-bargaining agreement were construed as permitting such a referral. In my view, the blatant hiring discrimination involved in allowing a union to disregard the usual order of re- ferrals when referring a steward can only be per- mitted when the union demonstrates that a particu- lar steward referral is based on substantial and le- gitimate considerations. Because the Respondent has made no such demonstration with respect to Crawford's referral, I would reaffirm the finding of a violation in the Board's original decision.