Aces Mechanical Corp.

National Labor Relations Board - Board Decisions

Feb 3, 1987

282 N.L.R.B. 928 (N.L.R.B. 1987)

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.