Derr & Gruenewald Construction

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 266 (N.L.R.B. 1994)

266
315 NLRB No. 36
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent’s motion to dismiss the instant case because of
the inadequacy of the General Counsel’s exceptions is denied, be-
cause the exceptions sufficiently comply with Sec. 102.46(b) of the
Board’s Rules and Regulations.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 reversing the findings.
3 Except where otherwise indicated, all dates are in 1992.
4 The Union is International Association of Bridge, Structural and
Ornamental Ironworkers, AFL–CIO, Local Union No. 24.
5 Art. I, entitled Purpose of Agreement, provides in pertinent part:
The contractor shall be the sole judge of any applicant’s quali-
fication. The contractor may exercise his right to hire and to re-
ject applicants for employment without regard to union member-
ship or non-membership, race, color, national origin, creed, sex,
or religion. Employer and Union agree to abide by all laws ap-
plicable to this contract, including executive orders and the Civil
Rights Act of 1964, as amended.
6 On February 3 or 6, Rathe contacted the Respondent’s vice presi-
dent, William Gruenewald, who agreed to delete only Ricky Bryant
and Steve Hamilton from its rejection list.
Derr and Gruenewald Construction Co. and David
Newell and Ricky G. Bryant and Douglas
Calkins. Cases 27–CA–12065, 27–CA–12065–2,
and 27–CA–12065–3
September 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On September 23, 1993, Administrative Law Judge
Clifford H. Anderson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a cross-exception and
brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the record in light of the exceptions and briefs, and has
decided to affirm the judge’s rulings, findings,2 and
conclusions, and to adopt the recommended Order.
The issue in this case is whether an arbitration
panel, in reviewing and sustaining the grievance of the
Charging Parties and five other employees adequately
considered the unfair labor practice issue that is now
before the Board. The judge dismissed the consolidated
complaint, finding that the arbitration panel had con-
sidered the unfair labor practice and that deferral to the
arbitral award was otherwise appropriate under the
standards set forth in Spielberg Mfg. Co., 112 NLRB
1980 (1955), and Raytheon Co., 140 NLRB 883
(1963). We agree, noting that the record in this matter
presents a rather unusual set of circumstances in that
the contractual grievance and the unfair labor practice
issues precisely coincide with each other.
Facts
The dispute in this case originated on February 3,
1992,3 when the Respondent refused to hire employees
Casey Hall and Matthew (Mac) McDonald, who had
been dispatched to the Respondent by the Union.4 On
that day, the Respondent transmitted to the Union a
letter identifying eight employees, including Hall and
McDonald and the Charging Parties, whom it deemed
ineligible for hire. Previously, on January 21, all eight
employees named in the letter had participated to vary-
ing degrees in a demonstration to protest unsafe condi-
tions and other related activities following a crane ac-
cident the day before at the Respondent’s jobsite at
Denver International Airport (DIA). In formulating the
letter, the Respondent invoked article I of the applica-
ble collective-bargaining agreement which reserves
solely to employers the determination of an applicant’s
qualifications for employment.5 The letter did not
specify why the Respondent deemed the eight men un-
qualified.
On February 6, the same day that Douglas Calkins
was dispatched to the Respondent and rejected for em-
ployment, the eight employees who were designated by
the Respondent as ineligible for hire, delivered a letter
to Union Business Manager Howard Rathe, signed by
all of them, that requested the Union to file a griev-
ance. The letter stated in pertinent part:
Derr & Gruenewald’s interpretation of the terms
of the [collective-bargaining agreement] and ap-
plication of, [sic] is out of context with the Pur-
pose of Agreement. By refusing to hire the Local
#24 members listed in the 2–3–92 declaration [the
Respondent is] discriminating against [the eight
employees] because of their local union member-
ship, union activity, or other [S]ec. 7 N.L.R.A.
protected group activity.
On February 7, 1991, Rathe filed a formal grievance,
with the Respondent’s and the employees’ letters at-
tached. The grievance summarized Rathe’s efforts to
resolve the dispute, explained that the Respondent had
agreed to delete two names on the list, but refused to
dissolve the list as a whole.6 Neither the grievance nor
the employees’ letter specifically mentioned the em-
ployees’ underlying involvement in the safety protest.
In early March, a hearing on the grievance was held
before the board of adjustment. Rathe elicited testi-
mony from the affected employees about their quali-
fications and work records. Rather than cross-examine
the employees or present evidence in support of its po-
sition, the Respondent elected to rely on its interpreta-
tion of the language in article I of the collective-bar-
gaining agreement. No evidence was presented about
267DERR & GRUENEWALD CONSTRUCTION
7 The parties agree that the proceedings were fair and regular and
that they agreed to be bound by the arbitrators’ decision. For reasons
set forth in the judge’s decision, we agree that the award is not re-
pugnant to the Act despite the fact that it is not coextensive with
the Board’s remedy in unfair labor practice cases such as the instant
one.
8 Chairman Gould does not adhere to Olin and does not view that
doctrine to be a viable one.
9 We note, too, that under the collective-bargaining agreement,
each party to the arbitration proceeding appoints two representatives
to the arbitration panel, and that the Union did so here. Although
the record is silent on the point, as a practical matter it may well
have been the case that the parties’ representatives were generally
cognizant of the facts underlying the grievance. In this regard, the
record establishes that the construction work at DIA constituted a
major project in the region, that the crane accident was reported in
the local news, and that the subsequent demonstration was well at-
tended by employees.
the employees’ involvement in postaccident activities.
On March 6, the board of adjustment issued a decision
in the matter which stated, without elaboration, that:
1) The ‘‘List’’ of February 3, 1992 by Derr &
Gruenewald is dissolved and retracted.
2) The three (3) persons referred by the Local
Union, to wit, Mac McDonald, Casey Hall and
Doug Caulkings [sic], are to be paid by Derr &
Gruenewald Construction Co. four (4) hours mini-
mum working time at the applicable wage and
benefit rate.
Discussion
As the judge noted, the Board will defer to an arbi-
tration award when the arbitration proceedings are fair
and regular, all parties agree to be bound, and the deci-
sion is not repugnant to the Act.7 Spielberg Mfg. Co.,
supra. An additional condition for deferral is that the
arbitral forum must have considered the unfair labor
practice issue. Raytheon Co., supra. The Board deems
the unfair labor practice issue to have been adequately
considered if (1) the contractual issue is factually par-
allel to the unfair labor practice, and (2) the arbitrator
was presented generally with the facts relevant to re-
solving the unfair labor practice. Olin Corp., 268
NLRB 573 (1984).8
On the basis of the foregoing, we agree with the
judge that the board of adjustment (the panel) consid-
ered the unfair labor practice issue, notwithstanding
that evidence concerning the employees’ postaccident
activities was not presented to it, and that the award
lacks an express rationale. Article I of the collective-
bargaining agreement expressly, and unambiguously,
gives employers unilateral authority to determine
whether applicants (i.e., hiring hall referents) are quali-
fied for employment. That authority, however, is lim-
ited by the further provision which expressly, and un-
ambiguously, prohibits an employer deeming an appli-
cant unqualified because of his union membership or
nonmembership (including, as the judge found, union
activity), and certain other specific reasons. See foot-
note 5, above. Here, the employees’ February 6 letter,
which was submitted to the arbitral forum as an attach-
ment to the Union’s grievance—indeed it formed the
crux of the grievance—specifically questions the Re-
spondent’s application of article I and avers, as the
only ground for the Respondent’s action under the con-
tract, that the employees were declared ineligible for
employment because of their Section 7 ‘‘group’’ activ-
ity or other union activity—the very allegations con-
tained in the instant unfair labor practice complaint.
Because the contractual violation alleged by the
grievance (as elucidated by the attachment of the em-
ployees’ February 6 letter) was limited to a claim that
the Respondent had discriminated against the grievants
on the basis of union and group activity that is square-
ly protected by Section 7 of the Act and discrimination
which is squarely prohibited by Section 8(a)(1) and
(3), the panel—if it upheld the grievance—could not
decide the contractual issue without deciding the unfair
labor practice issue as well. Put another way, given the
limited constraints imposed by article I of the contract
on an employer’s authority to refuse to accept referred
employees for hire and the fact that the only one of
those constraints invoked by the grievance coincided
with prohibitions of the Act, the only possible basis for
the panel’s ruling against the Respondent was discrimi-
nation of the kind alleged by the General Counsel in
this case. The failure of the Union to present the arbi-
tral panel with evidence of the ‘‘union activity or other
[S]ec. 7 N.L.R.A. protected group activity’’ alluded to
in the grievance does not foreclose this conclusion. In
view of the uncontradicted and objective evidence of
the employees’ experience and qualifications which the
Union presented to it, the panel must have concluded
that the Respondent could have deemed the employees
unqualified only if it was motivated by the reasons
complained of in their letter attachment to the griev-
ance—i.e., their Section 7 activity or other union activ-
ity. Because these are the elements required to prove
the allegations in the complaint, we are left with the
inescapable conclusion that the panel considered the
essential unfair labor practice issue even though details
of the employees’ protected activity were not specifi-
cally presented to it.9
Accordingly, we find that deferral to the arbitral
award in the instant matter is appropriate.
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters.
Further, the evidence offered at the hearing was not at significant
variance respecting the greater part of the events involved. Where
not otherwise noted, the findings are based on the pleadings, the
stipulations of counsel, or unchallenged credible evidence.
2 All dates hereinafter refer to 1992 unless otherwise indicated.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
the consolidated complaint is dismissed.
Michael Patton, Esq., for the General Counsel.
Robert R. Miller, Esq. (Stettner, Miller & Cohn), of Denver,
Colorado, for the Respondent.
Douglas Calkins, of Brighton, Colorado, pro se.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on April 27, 1993, in Denver, Colo-
rado, pursuant to an order consolidating cases, consolidated
complaint and notice of hearing issued by the Regional Di-
rector for Region 27 of the National Labor Relations Board
(the Board) on November 13, 1992. The consolidated com-
plaint is based on three separate charges filed by individuals
against Derr and Gruenewald Construction Company (Re-
spondent): Case 27–CA–12065 filed by David Newel on
February 4, 1992; Case 27–CA–12065–2 filed by Ricky C.
Bryant on February 5, 1992; and Case 27–CA–12065–3 filed
by Douglas Calkins on February 6, 1992.
The complaint alleges that Respondent on or about Feb-
ruary 3, 1992, and thereafter refused to hire eight named hir-
ing hall referents because they had:
joined, supported, or assisted the Union, and engaged in
concerted activities for the purpose of collective-bar-
gaining or other mutual aid or protection, and in order
to discourage employees from engaging in such activi-
ties or other concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection.
The complaint alleges this conduct violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act).
Respondent admitted its initial determination not to hire
the individuals at issue, but denied either that the individuals’
activities were protected or that its actions were impermis-
sible under the Act. Further, Respondent contended the dis-
pute underlying the complaint allegations had been resolved
under the applicable collective-bargaining agreement and the
case should therefore be deferred and the complaint be dis-
missed on that ground as well.
All parties were given full opportunity to participate at the
hearing; to introduce relevant evidence; to call, examine, and
cross-examine witnesses; to argue orally; and to file
posthearing briefs. Posthearing briefs were due on June 23,
1993.
On the entire record here, including helpful briefs from the
General Counsel and Respondent, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT1
I. JURISDICTION
At all material times, Respondent has been a corporation
with an office and place of business in Henderson, Colorado,
where it has been engaged in business as a contractor in the
construction industry. In the course of its business operations
at relevant times, Respondent annually purchased and re-
ceived goods, materials, and services valued in excess of
$50,000 directly from points and places outside the State of
Colorado.
Accordingly, it is undisputed, and I find, that Respondent
has at all times material been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. LABOR ORGANIZATION
The Structural Ironworkers, AFL–CIO, Local Union No.
24 (the Union) is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview of Events
1. Background
Respondent and Trujillo Steel, a separate entity not
charged in this proceeding, are construction contractors en-
gaged in steel erection. Each, at all relevant times, had a
contractual relationship with the Union respecting ironworker
employees. At relevant times, each contractor engaged in
steel erection at the Denver International Airport construction
site (airport) located in Denver, Colorado, a major project
which had involved very substantial construction over a con-
siderable time.
At relevant times, Respondent’s vice president was Wil-
liam C. Gruenewald and its superintendent was Kenneth L.
Conter. Respondent’s collective-bargaining agreement with
the Union contains both hiring hall, grievance, and arbitra-
tion provisions. The contract states, in part, at article 1:
Employers recognize all outside erection local unions in
the Rocky Mountain Area as a source of skilled man-
power and they will, therefore, use it as a source when
in need of workmen. . . . The contractor shall be the
sole judge of any applicant’s qualifications. The con-
tractor may exercise his right to hire and to reject appli-
cants for employment without regard to union member-
ship or non-membership, race, color, national origin,
creed, sex or religion. Employer and Union agree to
abide by all laws applicable to this contract.
2. The events of January 20 and 21, 1992
Respondent had been working on a particular job at the
airport for about a month when an accident occurred on Jan-
uary 20, 1992,2 involving a crane which resulted in serious
injury to an employee. Various ironworker employees of
Trujillo working on a job a short distance away came over
and undertook certain postaccident activities. Mark Calkins,
269DERR & GRUENEWALD CONSTRUCTION
Casey Hall, Steve Hamilton, Matthew McDonald, and
Charles O’Neil were involved.
The morning of the following day, January 21, a dem-
onstration and subsequent meetings with Respondent and
other site officials occurred. Doug Calkins, Rick Bryant, and
Dave Newell as well as the five named immediately above
and others were involved in varying degrees.
3. The hiring hall events
Following their layoffs by Trujillo and subsequent signup
on the Union’s out-of-work list, Hall and McDonald were
dispatched to Respondent’s airport job on the morning of
February 3 pursuant to Respondent’s call for referents. Each
was refused employment based on the contract language,
quoted supra, that Respondent was the sole judge of appli-
cant qualifications.
Later that day the Union received, by facsimile trans-
mission, a letter from Respondent dated February 3 again re-
peating the contract language quoted above and concluding:
‘‘Therefore we are exercising our right to reject employment
of the following’’ and naming the eight individuals in con-
test. Newell filed his charge on February 4; Bryant on Feb-
ruary 5.
On February 6, Doug Calkins was referred to Respondent
and refused employment on the same ground. He filed his
charge thereafter. Union Business Manager Howard Rathe
spoke to Gruenewald the same day about the list of eight.
Gruenewald agreed in that conversation or one held on Feb-
ruary 3 to delete the names of two individuals, Ricky Bryant
and Steve Hamilton, from the list, but refused to otherwise
change or cancel the list.
4. The grievance process
On February 6, the eight named on Respondent’s February
3 letter delivered to Rathe a joint letter asserting that the par-
ties could not reach a settlement on their dispute and request-
ing that the grievance procedures be invoked by the Union.
Such a letter was required under the contract’s dispute reso-
lution procedures. The letter asserted in part:
Derr & Gruenewald’s interpretation of the terms of the
AGREEMENT and application of, is out of context
with the Purpose of Agreement [capitalization in origi-
nal]. By refusing to hire the Local #24 members listed
in the 2–3–92 declaration they are discriminating
against them because of their local union membership,
union activity, or other sec. 7 N.L.R.A. protected group
activity.
By letter dated February 7, to the Colorado Steel Erectors
Association, with enclosed copies of both Respondent’s letter
of February 3 and the eight employees’ letter of February 6
and with an explanation of Respondent’s oral agreement to
delete the two names on the list, the Union formally filed a
grievance under the contract-grievance process challenging
Respondent’s actions.
Pursuant to the contractual procedures, a hearing was held
before a board of adjustment on March 4. The board of ad-
justment considered the above-described letters of February
3, 6, and 7 and evidence given at the hearing. Rathe testified
that he initially presented the Union’s side to the board of
adjustment generally exclaiming the experience and skills of
the eight employee applicants and asking the seven employee
applicants attending the board of adjustment to testify con-
cerning their skills, experience, good conduct, and absence of
discipline. Rathe testified that there was no discussion of the
unfair labor practice charges underlying the instant case
which had been filed on February 4, 5, and 6. Rathe further
testified that, on the completion of the Union’s case, Re-
spondent through Gruenewald in essence relied on the con-
tract language and the rights it gave employers to refuse
referents and said he would abide by the collective-bargain-
ing agreement.
Under cross-examination, Rathe was asked about notes
which he identified as made before the board of adjustment
hearing in preparation for his argument in rebuttal. He testi-
fied the notes were not used because he felt that Respondent
had not offered any evidence in response to his initial case,
which needed rebuttal. Those notes recited arguments to have
been made by Rathe at the board of adjustment hearing: (1)
that the job referents were active in union affairs; (2) that
Respondent’s list of people who were to be refused hire in-
cluded individuals because of their union activities or other
protected activity; and (3) that such actions by Respondent
were improper because the employees’ union activities or
other activities were protected by law.
The board of adjustment issued its decision in the matter
on March 6. It stated in part:
1) The ‘‘List’’ of February 3, 1992 by Derr &
Gruenewald is dissolved and retracted.
2) The three (3) persons referred by the Local Union,
to wit, Mac McDonald, Casey Hall and Doug
Caulkings, are to be paid by Derr & Gruenewald Con-
struction Co. four (4) hours minimum working time at
the applicable wage and benefit rate.
B. Analysis
1. The order of consideration of issues
Two independent sets of issues were litigated in the instant
proceeding. The first and more obvious group of issues in-
volved the conventional litigation of the failure-to-hire com-
plaint allegations presenting the traditional areas of contest in
an 8(a)(1) and (3) discrimination case. Thus, the parties liti-
gated whether the referents had engaged in union or pro-
tected concerted activity and whether Respondent’s actions
were undertaken because of that activity.
The second, more specialized, group of issues arose
around the question of whether the complaint should be de-
ferred to the parties’ contractual resolution. Board policy is
clear that deferral issues are to be addressed initially, prior
to any determination of the merits of the underlying com-
plaint allegations.
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The parties were well aware of the applicable doctrine in this
area and filed scholarly briefs on the issue.
2. Should the instant case be deferred to the board of
adjustment award
a. The legal standards for deferral3
The Board in Spielberg Mfg. Co., 112 NLRB 1080 (1955),
adopted a policy of deferral to arbitral decisions in order to
encourage voluntary settlement of labor disputes. In deciding
whether deferral is appropriate in a given case, the Board in
Spielberg considered: (1) whether the proceedings were fair
and regular; (2) whether all parties agreed to be bound; and
(3) whether the decision is repugnant to the purposes and
policies of the Act. In Raytheon Co., 140 NLRB 883 (1963),
the Board declined to defer to an arbitration award based on
a determination that the arbitrator had considered only the
contract-grievance issue and not the statutory questions un-
derlying the unfair labor practice change and complaint. The
Board required as a precondition to deferral that the arbitral
forum had ‘‘considered’’ the unfair labor practice issue.
This ‘‘considered’’ requirement has evolved over the
course of time. The Board in Olin Corp., 268 NLRB 573,
574 (1984), again addressed the issue announcing the follow-
ing standard for deferral to arbitration awards:
We would find that an arbitrator had adequately con-
sidered the unfair labor practice if (1) the contractual
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. In this respect, differences, if any, between the
contractual and statutory standards of review should be
weighed by the Board as part of its determination under
the Spielberg standards of whether an award is ‘‘clearly
repugnant’’ to the Act. And, with regard to the inquiry
into the ‘‘clearly repugnant’’ standard, we would not
require an arbitrator’s award to be totally consistent
with Board precedent. Unless the award is ‘‘palpably
wrong,’’ i.e., unless the arbitrator’s decision is not sus-
ceptible to an interpretation consistent with the Act, we
will defer.
The Board held further in Olin that the party seeking to have
the Board ignore the determination of the arbitrator bore the
burden of affirmatively demonstrating the defects in the arbi-
tral process or award.
The Board has since applied this newer standard to with-
hold deferral to arbitration decisions: see, e.g., Wheeling-
Pittsburgh Steel Corp., 277 NLRB 1388 (1985), enfd. 821
F.2d 342 (6th Cir. 1987); Ryder/P.I.E. Nationwide, 278
NLRB 713 (1986), enfd. in relevant part 810 F.2d 502 (5th
Cir. 1987), as well as to defer to appropriate awards, see,
e.g., United Parcel Service, 305 NLRB 433 (1991).
b. Application of the deferral standard to the
instant case
There is no dispute that the parties had agreed to be bound
by the contractual proceedings or that the proceedings were
fair and regular. Rather, the Olin standard quoted above con-
cerning arbitral consideration of the unfair labor practice
issues was the focal point of the parties’ arguments. It is ap-
propriate to apply the separate steps of the Olin test to the
instant case.
(1) Is the contractual issue factually parallel to the
statutory issue?
In determining if the statutory and contractual issues in-
volved here are factually parallel, they must first be identi-
fied. The General Counsel’s complaint alleges that the eight
employees were denied employment because they had
joined, supported, or assisted the Union, and engaged in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, and in order
to discourage employees from engaging in such activi-
ties or other concerted activities for the purposes of col-
lective bargaining or other mutual laid or protection.
The contractual issue before the board of adjustment was
whether or not Respondent’s action in barring the eight hir-
ing hall referents from employment was proper under the fol-
lowing contractual provision:
The contractor shall be the sole judge of any appli-
cant’s qualifications. The contractor may exercise his
right to hire and to reject applicants for employment
without regard to union membership or non-member-
ship, race, color, national origin, creed, sex or religion.
Employer and Union agree to abide by all laws applica-
ble to this contract.
The General Counsel’s complaint asserts that the eight
were refused hire by Respondent because of their union and
protected concerted activities. The unambiguous meaning of
the contract provision quoted above is that, under its terms,
an employer may act with impunity to reject applicants it
judges unqualified unless the rejection is for certain specific,
listed reasons—one of which is union membership. I read the
contractual term ‘‘union membership’’ to fairly include union
activities in the same way that the term ‘‘membership’’ in
Section 8(a)(3) of the Act has been interpreted to include
such activities. Radio Officers Union v. NLRB, 347 U.S. 17,
65–66 (1954). I find therefore that the contract provision that
was invoked by the parties at the board of adjustment pro-
tected job applicants from rejection by employers, including
Respondent, based on their union activities.
The factual question presented under both the contractual
and statutory standards described above as litigated at the
board of adjustment hearing and in the instant case are iden-
tical: what was Respondent’s reason for declaring the eight
ineligible for hire? If Respondent declined to hire the eight
individuals as a result of its opinions about their job quali-
fications, it was entitled to do so irrespective of others’ opin-
ions regarding those qualifications under both the contract
and the Act. If Respondent declined to hire the eight because
of their union activities, it acted improperly under both the
contract and the Act. I find, therefore, that the statutory and
contractual issues involved were factually parallel within the
meaning of Olin.
271DERR & GRUENEWALD CONSTRUCTION
(2) Was the board of adjustment presented generally
with facts relevant to resolving the unfair
labor practice?
(a) The arguments of the parties
The General Counsel argues on brief at 10–11:
Although the employee letter attached to the griev-
ance alleged discrimination based on Section 7 activity,
neither the Union nor the Respondent presented any
evidence regarding that activity at the Panel hearing.
There was no recording or transcription of the proceed-
ings, however, the facts regarding the proceeding are
not in dispute. The evidence establishes that no evi-
dence of the employees’ protected concerted activities
were presented to the Panel. Thus, no evidence of the
events following the accident on January 20, the dem-
onstration on January 21, or the employee meetings
with management officials at [the Airport] were pre-
sented to the Panel. There was no discussion of the Na-
tional Labor Relations Board or the ULP charges that
were then pending against Respondent. There was no
discussion of the concern of employees had expressed
about safety or hiring practices. Rathe presented only
evidence of the high qualifications, good work habits,
and employment history the eight had with Respondent.
The Respondent presented no evidence and the Panel
asked no questions. The Respondent merely relied upon
the contractual language of Article I. Under these cir-
cumstances, the contractual question is not parallel to
the statutory issue, and the facts relevant to the resolu-
tion of the statutory issue were never presented to or
decided by the Board of Adjustment. The General
Counsel has established [a case] demonstrating that the
standards for deferral have not been met. Olin deferral
is not warranted.
Respondent argued at the hearing and on brief that the
board of adjustment award dissolving Respondent’s do-not-
hire list makes it clear that the board of adjustment had been
presented with the facts necessary to resolve the unfair labor
practice as Olin requires. In effect, Respondent argues that,
if the board of adjustment had not received and considered
such evidence, how could Respondent have lost the board of
adjustment decision given an employer’s clear contractual
right to be the sole judge of applicant job qualifications?
Counsel for Respondent also notes that Rathe for the
Union came to the arbitration armed with notes showing he
had intended to specifically raise before the board of adjust-
ment the fact of the eight job applicants’ union activities and
the fact that employers cannot enforce disciplinary action, if
the true reason for the discipline is the employee’s union or
other activities protected by law. Rathe did not, in the actual
event, make those assertions because he believed them to be
unnecessary as a result of Respondent’s failure to challenge
the Union’s case-in-chief at the board of adjustment hearing.
Thus, Respondent argues: (1) even if not explicitly stated
orally at the hearing, the unfair labor practice theory based
on employer discrimination because of the job applicants’
union, and other protected activity claim was raised by the
Union to the board of adjustment in the joining documents;
(2) the Union managed its litigation with the unfair labor
practice discriminatory conduct claim as the factual basis for
its claim of a contract violation; and (3) the Union, in fact,
prevailed in its argument.
(b) Analysis and conclusion
Applying the teaching of Olin that ‘‘unless the arbitrator’s
decision is not susceptible to an interpretation consistent with
the Act, we will defer,’’ 268 NLRB at 574, I find the board
of adjustment was in fact presented with, did consider and
relied on facts relevant to resolving the unfair labor practice
case. I reach this result even though I accept the factual as-
sertions respecting the board of adjustment hearing made in
the portion of the General Counsel’s brief quoted supra. How
can it be that I find the arbitral body was presented with,
considered, and relied on evidence which was before it only
in the form of an allegation in a joint employee grievance
letter sent to the Union and included with the Union’s griev-
ance in the documentary submission to the board of adjust-
ment panel?
Relying on the essentially uncontradicted testimony of
Rathe respecting what occurred in the board of adjustment
hearing as well as the Board’s specific assignment of the
legal burden on the General Counsel to prove deferral is in-
appropriate, I find that the parties litigant as well as the
board of adjustment panel members well knew the grievance
before them dealt with the Union’s contention that the em-
ployees were being discriminated against impermissibly be-
cause of their union activities. I make this finding for the fol-
lowing reasons.
First, I rely on the presumption that the parties and the
board of adjustment members were reasonably competent,
experienced members of the construction industry, and were
familiar with labor relations matters sufficient that the con-
tract and the contentions of the parties would be understood
and the entire record considered in resolving the issue. In ef-
fect I am presuming that the participants were competent to
perform the tasks assigned them. Generally competence is
properly presumed. Further, both the Board and the courts
have often favorably commented on the voluntary dispute
resolution mechanisms utilized in labor relations, so that the
efforts and competence of the participants in such processes
is not unreasonable presumed.
Given the presumption of competence and experience, I
find that all the parties and board of adjustment participants
realized from the state of the record at the commencement
of the board of adjustment hearing that the Union was con-
tending that Respondent had acted impermissibly by punish-
ing employees for their union activities. The employees fol-
lowed the dispute resolution procedure in reducing their dis-
pute to writing in their February 6 letter, quoted supra. That
letter explicitly set forth the theory of the contract violation
as discrimination against the eight ‘‘because of their local
union membership, union activity, or other sec. 7 N.L.R.A.
protected group activity.’’ and refers to the terms of the con-
tract dealing with union membership.
From Respondent’s letter of February 3 the board of ad-
justment also knew before any testimony was received at the
hearing that Respondent was defending its actions as permis-
sible under the same contract provisions, i.e., that Respond-
ent was refusing to hire the eight individuals based on its
view of the applicants’ qualifications independent of their
union activities. The parties and the board of adjustment
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Unlike the far more common case, the General Counsel herein
is not seeking to set aside an adverse arbitral award, i.e., an award
seemingly in contradiction to the General Counsel’s theory of a vio-
lation. Here, the General Counsel seeks that the Board not defer to
an award favorable to the Charging Parties and the Union which,
consistent with the General Counsel’s complaint, holds that Re-
spondent acted improperly.
members were surely well aware of the long-held tradition
in the construction industry as specifically set forth in the
contract, that an employer could refuse to hire a hiring hall
referent based on a view that the individual’s skills were in-
sufficient—so long as that assertion was not simply pretext
for discrimination on other, improper grounds.
The above-described positions of the parties and apparent
contract issues were known to all as the board of adjustment
hearing commenced on March 4. The three letters from Re-
spondent, the eight applicants and the Union, quoted supra,
had earlier been provided the board of adjustment panel
members and were the primary documents informing the
body of what issues had been joined in the grievance. The
state of the record at that time is important to an understand-
ing of the way in which the hearing was conducted there-
after.
The Union presented its case first and, not unlike a typical
prosecution of pretext cases in Board unfair labor practice
proceedings, attempted to show that the reason implicitly as-
serted by Respondent for refusing to hire the eight applicants
in its letter of February 3, i.e., their insufficient job qualifica-
tions, was not Respondent’s true reason for refusing to hire
them because the individuals were in fact objectively very
well qualified. When the Union put on testimony in its case-
in-chief tending to establish the apparent bona fides of the
grievants’ qualifications, Rathe’s testimony indicates he be-
lieved, although he did not put it in these terms, that the
Union had met its initials burden of showing that Respondent
was not in fact refusing to employ the referents because of
their lack of job qualifications. Thus, the Union in limiting
its evidence to the question of job qualifications had at-
tempted to shift the burden of going forward to Respondent,
withholding the Union’s direct arguments and evidence re-
specting the group of eight’s union activities and the Union’s
direct arguments that Respondent was acting on antiunion
animus until it observed the evidence Respondent would put
on in its defense in chief.
When Respondent, in effect, offered no evidentiary de-
fense in response to the Union’s case-in-chief, rather relying
on the bare language of the contract, the Union concluded
that Respondent had not rebutted its earlier evidence that the
referents were qualified and determined it need not put on
evidence of either the job applicants’ union activities or Re-
spondent’s animus toward those activities. Rathe’s testimony
respecting the notes he had prepared in anticipation of mak-
ing arguments to the board of adjustment concerning the
referents’ union and other legally protected activities, Re-
spondent’s discrimination against them because of those ac-
tivities and Rathe’s determination during the board of adjust-
ment not to raise those issues when Respondent did not an-
swer the Union’s case-in-chief was unambiguous and unchal-
lenged.
I find that the Union’s approach to the board of adjustment
hearing as it progressed as well as the Union’s theories of
argument and its presentation of evidence was or should have
been self evident both to Respondent and the board of adjust-
ment panel members. The Union had adduced evidence suffi-
cient to raise—as often occurs in Board unfair labor practice
cases—a permissible inference, which the Rathe for the
Union believed the board of adjustment members would
draw even without explicit evidence or argument on the
issue, that the discriminatory actions of Respondent against
the eight applicants—not having been undertaken for the as-
serted permissible reasons initially offered by Respondent—
were rather undertaken for an impermissible reason, the
groups’ union and other protected activities.
I specifically find that in this sequence of events the par-
ties and the board of adjustment panel members either knew
or should have known the true underlining issues of the pro-
ceeding irrespective of the actual evidence introduced. In
board of adjustment hearings as in other litigation, burdens,
presumptions, and inferences may in appropriate cir-
cumstances substitute for evidence and may constitute the
basis for a ruling. So it was in this case. In the board of ad-
justment hearing the critical issue was the identification of
the true reason for Respondent’s actions which were, depend-
ing on the factual resolution of the issue, either (1) contrac-
tually permissible and legal or (2) contractually prohibited
and an unfair labor practice. Respondent’s failure to meet the
Union’s evidence that the reason asserted by Respondent in
refusing to hire the eight job applicants was not the true rea-
son for Respondent’s refusal to hire them and the Union’s
reliance on that failure to adduce evidence in resting its case
is legally equivalent to an actual a presentation of evidentiary
facts to the board of adjustment relevant to resolving the un-
fair labor practice case.
The fact that the board of adjustment decision sustained
the Union and the eight applicants grievance further supports
this view.4 The Union’s litigation tactics prevailed. The
board of adjustment decision at least implicitly sustained the
Union and the Charging Parties argument that Respondent
could not take the action it did under the contract and di-
rected Respondent to dissolve its list of the eight referents
as not eligible for hire. Further the decision awarded modest
backpay to those three of the eight who had actually been
referred to and rejected by Respondent. It seems clear and
I find that the Union could not have prevailed under the con-
tract provision invoked in support of its grievance unless the
board of adjustment had determined as part of its decision-
making process that Respondent’s true reason for not hiring
the eight individuals—as was claimed by the eight in their
letter of February 6—was their ‘‘local union membership,
union activity and other section 7 N.L.R.A. protected group
activity.’’ Put more simply, if the board of adjustment had
not been presented with and considered evidence relevant to
the parallel unfair labor practice issues, the Union would not,
indeed could not, have won its grievance.
Based on all the above and the record as a whole and
guided by the Olin decision and the subsequent cases cited
above, I find that the board of adjustment was presented gen-
erally with facts relevant to resolving the unfair labor prac-
tice allegations at issue here.
(3) Is the board of adjustment repugnant to the Act?
As noted supra, the Board requires that any award it will
defer to not be repugnant to the purposes and policies of the
273DERR & GRUENEWALD CONSTRUCTION
Act. The board of adjustment award in the instant case is at-
tacked by counsel for the General Counsel at footnote 5,
page 11 of his brief:
Since the record clearly establishes deferral is not
warranted for this reason it is not necessary to decide
whether the award is also clearly repugnant under
Spielberg, however, it is noted that the award is not
consistent with the usual Board remedy. Thus, the
award does not address the issues of reinstatement of
Hall, Calkins or McDonald, it does not insure the eight
are qualified to be called by name, and provides only
nominal backpay for Hall, McDonald and Doug
Caulkins, while the evidence demonstrates they are due
substantial backpay [citations to transcript omitted].
[See Cone Mills Corp., 298 NLRB 661 (1990). Cf.
Postal Service, 288 NLRB 500, 504 fn. 13 (1988).]
Respondent cites the case of Combustion Engineering, 272
NLRB 215 (1984), in which the Board quoted Olin, supra at
574:
And, with regard to the inquiry into the ‘‘clearly re-
pugnant’’ standard, we would not require an arbitrator’s
award to be totally consistent with Board precedent.
Unless the award is ‘‘palpably wrong’’ [footnote omit-
ted], i.e., unless the arbitrator’s decision is not suscep-
tible to an interpretation consistent with the Act, we
will defer.
The Board held in Combustion Engineering, supra, that an
arbitration decision awarding reinstatement without backpay
where such backpay would have been included in any Board
directed remedy was not palpably wrong and was susceptible
to an interpretation consistent with the Act.
Initially it is valuable to compare the board of adjustment
award with what might reasonably be obtained in a success-
ful prosecution of the unfair labor practice case. In both an
unfair labor practice case and in the board of adjustment
award the improper ‘‘do not hire list’’ would be retracted.
As the General Counsel argues, a proper unfair labor practice
case remedy for the allegations in the instant complaint
would normally also include reinstatement and backpay for
any of the eight individuals who, but for Respondent’s illegal
conduct, would have been hired by it. These individuals
would most likely have included at least the three who were
dispatched to and refused employment by Respondent. The
board of adjustment remedy simply provides these three indi-
viduals, and no others, with 4 hours’ wages and benefits. No
reinstatement order was included in the remedy. The dif-
ference in remedies is not necessarily so large as may be ini-
tially apparent. Since each of the eight individuals obtained
employment using the Union’s hiring hall dispatch system,
being refused employment by Respondent presumably did
not lose the job applicant his place on the dispatch roster
thus making subsequent employment more likely in a shorter
period than if a high place of the dispatch register was not
then held. Further, it is not apparent what, if any, employ-
ment harm was suffered by those of the eight who were
never eligible for dispatch during the period of February 3
through mid-March when the ‘‘do not hire’’ list was in ef-
fect.
Relying on the cited cases, I find in agreement with Re-
spondent that the board of adjustment award is not repugnant
to the Act. The dissolution of the ineligible for hire list and
the nominal backpay for the three referents who were dis-
patched and refused employment by Respondent is, as dis-
cussed above, not all that the General Counsel might obtain
in a completely successful prosecution of the complaint in
this case. The award does, however, end Respondent’s re-
fusal to hire the named hiring hall referents which may fairly
be considered to be the heart of the alleged violations of the
Act. Indeed it did so in a relatively short period of time. Fur-
ther, there is nothing in the rationale of the decision or award
which is inconsistent with the Act. Under Combustion Engi-
neering, supra, Olin, supra, 268 NLRB 573, and the cases
cited therein, I find the board of adjustment award is not so
insufficient as compared to a Board directed remedy in an
unfair labor practice case as to be, for that reason alone, re-
pugnant to the Act. The General Counsel’s cited case Cone
Mills Corp., 298 NLRB 661 (1990), is not to the contrary.
In that case the arbitrator’s remedy was less than would have
been obtained in a successful unfair labor practice prosecu-
tion because the arbitrator made a determination that pro-
tected activity constituted insubordination in a manner
‘‘plainly contrary to the Act,’’ 298 NLRB at 667, and which
reduced the award. The Board found the arbitrator’s insubor-
dination findings impossible to harmonize with the Act and
therefore rendered the award clearly repugnant to the Act and
prevented deferral. It was not the fact that the arbitrator’s
remedy differed from an unfair labor practice remedy which
defeated deferral, but rather the fact that the arbitrator re-
duced the amount the ‘‘insubordinate’’ employee would re-
ceive in the remedy on grounds incompatible with the Act.
C. Summary and Conclusion
I have found, supra, that the board of adjustment award
meets the Board’s standards for deferral established in
Spielberg, Supra, 112 NLRB 1080 Olin, supra and other
cases. Accordingly, I find that it is appropriate to defer the
instant matter to that award. It follows that the complaint
should therefore be dismissed in its entirety.
On the basis of the above findings of fact and on the en-
tire record, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The board of adjustment issued an award on March 6,
1992, concerning which:
(a) Respondent and the Union had agreed to be bound by
the award.
(b) The procedures resulting in the award were fair and
regular.
(c) The board of adjustment had been presented with evi-
dence concerning and had considered the unfair labor prac-
tice issues here.
(d) The award is not repugnant to the Act.
4. It is appropriate to defer the instant complaint to the
award.
5. Further proceedings are unwarranted.
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The complaint shall be and it is dismissed.