Melones Contractors

National Labor Relations Board - Board Decisions

Mar 15, 1979

241 N.L.R.B. 14 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Melones Contractors, A Joint Venture and Jack J.
Morris. Case 32 CA 372 (formerly 20 CA 13362)
March 15, 1979
DECISION AND ORDER
By CHAIRMAN FANNING AND MFMBERS JENKINS
AND MURPIIY
On October 16, 1978, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge, except
as noted below, and to adopt his recommended Or-
der.
Respondent has excepted, inter alia, to certain of
the Administrative Law Judge's subsidiary findings
which would indicate the existence of an underlying
general atmosphere of ill will and contentiousness be-
tween Respondent and the Union, as well as the
Charging Party himself. Respondent contends, in es-
sence, that such findings are speculative and conjec-
tural and not based on record facts. We have care-
fully reviewed the record and we agree with
Respondent that some of the phraseology contained
in the Decision characterizing the overall relationship
between the parties is perhaps gratuitous and not sup-
ported in the record. Thus, in adopting the Adminis-
trative Law Judge's ultimate conclusion that Respon-
dent unlawfully discharged Union Shop Steward
Morris, we place no reliance on any such arguably
unsupported findings of strong animosity between the
parties. Rather, our agreement with the Administra-
tive Law Judge on this ultimate issue is based on his
well-supported finding of Morris' consistent union ac-
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Do Wall Products. Inc., 91 NLRB 544
(1950)., enfd. 188 F.2d 362 (3d Cir. 1951). we have carefully examined the
record and find no basis foir reversing his findings.
The Administrative Law Judge's Decision contains several inadvertent
errors: () In the third par. of sec. I.C, of the Decision, entitled "The Defer-
ral Issue." "article I., section 4(a)" should read "article 1. section 4(d)"; and
(2) in this same par. the Administrative Law Judge erroneously states that
the Council on Industrial Relations ((IR) accepted the recommendation of
the Interim Committee, whereas the record establishes that the .lbor-Man-
agement Committee. not the CIR, accepted this recommendation
tivism throughout the 15-month period immediately
preceding his discharge, the clearly pretextual nature
of the specifically asserted reason for his discharge,
and the lack of substantiation for the additional rea-
sons subsequently offered by Respondent as grounds
for the discharge.
In agreeing with the Administrative Law Judge
that deferral to the grievance proceedings in this case
is not appropriate under the standards for such defer-
ral long adhered to by the Board, and initially estab-
lished in Spielherg Manufacturing Company, 112
NLRB 1080, 1082 (1955), we note that there was no
final resolution of Morris' grievance under the con-
tractual grievance resolution provisions, inasmuch as
the grievance was never presented to the Council on
Industrial Relations-the only body with final adjudi-
catory authority under the contract. Thus, "the full
range of the mechanism for the determination of the
dispute has not been utilized and there is no award
that may be examined for its conformity with Spiel-
berg requirements." Whirlpool Corporation, Evansville
Division, 216 NLRB 183, 186 (1975).2 Accordingly,
we find it unnecessary to reach or pass on the other
reasons given by the administrative Law Judge for
not deferring to the parties' grievance procedure.
Finally, Respondent urges that if we decide, as we
have, not to defer to the grievance proceedings con-
ducted in this case, we should in the alternative refer
this matter back to the Labor-Management Commit-
tee step of the contractual procedure for continued
processing. However, inasmuch as this case involves
allegations of employer interference with an employ-
ee's individual basic protected rights under Section 7
of the Act, we decline to so refer, for the reasons set
out in the Board's Decision in General American
Trinsportation Corporation, 228 NLRB 808 (1977).
In light of the above, we adopt the Administrative
Law Judge's findings that Respondent discharged em-
ployee Jack Morris in violation of Section 8(a)(3) and
(I) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Melones Contractors, A
Joint Venture, its officers, agents, successors, and as-
signs, at the site of the Melones Dam located near
Jamestown, California, shall take the action set forth
in the said recommended Order, except that the at-
2 See also I& ' Induatries, Inc., 235 NLRB 517 (1978); Super Valu Xenia,
A Divi.ri,n of Super Valu Stores. Inc., 228 NLRB 1254, 1260 (1977); Keller-
Crescent (orneanr, a Division of Moler, 217 NL.RB 685, 686 (1975).
241 NLRB No. 3
14
tached notice is substituted for that of the Adminis-
trative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to present their evidence, it has been decided that
we violated the law, and we have been ordered to
post this notice. We intend to carry out the Order of
the Board and abide by the following:
WE WILL NOT discharge or otherwise discrimi-
nate against employees for the purpose of dis-
couraging employees from engaging in union or
other protected concerted activity for their mu-
tual aid or protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain col-
lectively through representative of their own
choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any and all such activities.
WE WILL offer Jack Morris immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority and other
rights and privileges previously enjoyed, includ-
ing backpay with interest.
MELONES CONTRACTORS, A JOINT VENTURE
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This case
came for hearing before me on April 25, 1978, in Stockton,
California, based on a charge filed on September 6, 1977,'
and a complaint issued on January 16, 1978. The complaint
alleges that Melones Contractors, a Joint Venture, hereinaf-
ter called Respondent, in violation of Section 8(a)(3) and (I)
of the National Labor Relations Act, hereinafter called the
Act, discharged Jack J. Morris, an individual, on August
12, 1977, allegedly because he broke a piece of equipment
on August 12. The General Counsel alleges that the reason
for the discharge was the fact that Morris was a very mili-
tant activist in prosecuting alleged infractions of the con-
tract in his capacity as a shop steward for the International
Brotherhood of Electrical Workers, Local 591. AFL CIO,
I All dates referred to in this Decision are in 1977 unless otherwise speci-
fied.
MELONES CONTRACTORS
hereinafter called the Union, and that therefore the dis-
charge was because of his activities in processing grievances
and was violative of Section 8(a)(3) and (I) of the Act. Re-
spondent's answer denies the commission of any unfair la-
bor practices.
At the hearing all parties were offered full opportunity to
adduce relevant and material evidence, to examine and
cross-examine witnesses, to argue orally on the record, and
to submit briefs. Post-hearing briefs were submitted by
General Counsel and Respondent which have been duly
considered. 2
Upon due consideration of the evidence, including my
observation of the demeanor of the witnesses while testify-
ing, and the entire record in the case. I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent is involved in a joint venture as a participant
engaged in the construction of a $150 million dam being
built by the United States Army Corps of Engineers which
has been in the process of contruction since 1974. During
the conduct of its operations, Respondent purchased and
received at the project goods, materials, and supplies valued
in excess of $50,000 directly from suppliers located outside
the State of California. Respondent's answer admits and I
find that Respondent in an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
il. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local
591, AFL-CIO, is now, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
A. Findings of Fact
I. Background information
In its answer Respondent denies the supervisory status of
two alleged supervisors, Loe Grooms, general electrical
foreman. and Gene Armstrong, foreman. The Respondent's
supervisory hierarchy consists of: Gene Reed, electrical su-
perintendent; Barney Smith, labor relations manager; Fred
M. Butler, project manager; Leo Grooms, general foreman;
and Gene Armstrong, who is described as a foreman. Re-
spondent denies the supervisory status of Grooms and
Armstrong. Respondent in its answer denies that Grooms is
a supervisor but this denial does not conform with the rec-
ord information. Grooms was promoted to the position of
general foreman on May 4, 1977; he testified that he ap-
pointed foremen under him, recommended layoffs and pro-
2 The General Counsel served a subpoena duces tecum on Respondent re-
questing substantial information. Respondent filed a motion to revoke the
subpoena duces ecum. Other documents were filed in connection with the
request to produce books and records, all of which came to a head at the
hearing. by which time the General Counsel filed an amended subpoena
duces recum. At the hearing the parties reached agreement on a stipulation
regarding the subpenaed documents. The General Counsel stated on the
record that Respondent substantially complied with the subpena.
15
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motions, and disciplined employees. I find that Grooms is a
supervisor within the meaning of the Act. As to Armstrong,
he has appeared at various times during the course of his
employment as a working foreman or an electrician-the
job varies from time to time.
The construction project began approximately in 1974
and continues to date. The employee complement during
the construction of the dam has fluctuated; there are cur-
rently about 500 employees on the site. Electricians for the
project are supplied to the Employer from two IBEW lo-
cals, Local 591 in Stockton and Local 684 in Modesto.
Morris began work at the Melones site in 1975 for an
electrical subcontractor, City Appliance, along with two or
three other electricians. During that period Morris was su-
pervised by Reed who was then Melones' electrical superin-
tendent. Morris was laid off at the termination of the City
Appliance subcontract but was rehired by Melones Con-
tractors in April 1976. In May 1976, Morris was appointed
job steward by his business agent, Mr. Ed James, who was
replaced in the fall of 1976 as Local 591's business agent by
Richard Boccoli. At Boccoli's instructions Morris began to
keep a log of alleged contract violations which occurred at
the Melones jobsite. During the time that he acted as a
steward, Morris noted in his log approximately 50 viola-
tions, some of which became points of irritation between
the Union and the electrical supervisors at Respondent.
2. Morris' shop steward activities
Among many issues about which Morris and Boccoli had
conflicts with Respondent was its failure to pay electricians
the required travel allowance. After a confrontation with
Barney Smith, the personnel manager, and Respondent's
failure to respond to the Union's request for additional
mileage payment, in December, Morris, at Boccoli's in-
struction, caused a job stoppage 2 miles from the jobsite
and went to the personnel office and demanded company
transportation to the site. After a number of days of dis-
pute, Respondent acceded to the Union's request and be-
gan to pay the disputed mileage although it refused to do so
retroactively. On April 12 the Union took Melones through
a labor-management grievance meeting over the issue of the
unpaid mileage, and Morris appeared to present documen-
tary evidence. The committee awarded the back mileage,
and Respondent appealed that decision. On April 28 Boc-
coli. went to the Melones jobsite and threatened a work
stoppage if the payments were not received. On April 29
Morris instructed the employees that there would be a work
stoppage until the payment was received. On May 2, after a
2-day work stoppage, Morris received a telegram threaten-
ing him with termination if he did not return to the job.
Morris and his fellow electricians did return to the job as a
result of this threat from Respondent.
The General Counsel calls attention to the fact that, early
in January, Morris received a letter from the Union order-
ing him to appear at a union executive board meeting to
testify about the problems at Melones Dam. The record
shows that shortly after Morris received this letter Reed,
apparently having learned of the letter, confronted Morris
and warned him, "If there was any union troubles up here
or anything else, that he (Reed) was going to run out mate-
rial and have a layoff."
There was considerable friction between Morris and gen-
eral electrician Foreman Grooms over matters that came
up on the jobsite. For example, the violations included a
prohibition against Grooms' working with his tools and
working without an electrician on the job; the inequitable
distribution of and notification concerning overtime assign-
ments; the timing of coffeebreaks; and the problem of as-
signing foremen on the job. One of the matters which
caused some difference of opinion between Grooms and
Morris was the fact that Morris claimed Grooms was doing
the work of the electricians on the job and as a general
electrical foreman, he was not supposed to work with tools
or work without another electrician on the job. There were
other differences between Morris and Grooms, some con-
sisting of a conflict concerning craft work assignments.
Morris found Grooms assigning IBEW work to the wrong
craft. Grooms protested it was easier for the other crafts to
do the work, or contended that the electricians did not want
the work. Morris, however, pressed his claim and went so
far as to bring Boccoli up to the site where Boccoli notified
Smith that the electricians were to be paid for the hours lost
as a result of other crafts doing their work. Smith, the per-
sonnel director, agreed to pay electricians based on this
claim.
Another problem, which ultimately led to a final work
stoppage commenced by Morris on August 4, concerned
the contractual provision regarding appointment of fore-
men. On three occasions when Grooms attempted to ap-
point a lineman, Jim Ballew, as a foreman, Morris insisted
that such an appointment violated the inside wiremen's
agreement which governed the Melones site. This problem
first arose during the April 28 meeting between Smith, Boc-
coli, and Morris. At that meeting Smith attempted to secure
Boccoli's consent to a waiver of the Union's right to protest
the appointment of Ballew as a lineman. Morris convinced
Boccoli not to sign such an agreement.
According to the General Counsel, the foreman issue,
along with certain other recurring problems regarding
Grooms' working with the tools, coffeebreaks, and the as-
signment of overtime, came to a head during a series of
meetings and confrontations between July 26 and August 6.
On the morning of July 26 Grooms told Morris that he was
promoting Ballew and Dahlin to foremen. Morris protested
that they had been over this problem a dozen times, and
this would not be permitted. Grooms told Morris to get off
the job or go to work, and Morris went back down to Oak-
dale to contact Sturgis, the Modesto business agent. Morris
met with Sturgis, who sent a written directive telling Ballew
and Dahlin to step down from the foreman job. On the
following Monday Grooms reiterated his intention to
switch foremen, and Morris again protested. This time
Morris kept the men in the yard and refused to allow them
on the jobsite until the matter was resolved. This work stop-
page came to the attention of Reed, who went to the per-
sonnel office and had Smith contact Sturgis, who granted
temporary permission to allow the switch pending a meet-
ing on August 4. On August 4 there was a meeting in
Smith's office, with Smith, Reed, Sturgis (a Modesto busi-
ness agent), Neil Jennings (the Stockton business agent),
and Morris attending.
After reciting the grievances the Union felt it had against
16
MELONES CONTRACTORS
Respondent, Respondent replied that it too had complaints
about the Union and one of them was that the electricians
were leaving the jobs 15 to 20 minutes early. This accusa-
tion angered Morris who called Smith a "damn liar."
A certain amount of ill will was caused by the meeting,
and this hostility continued on the j bsite during the next
few days. On August 5 Morris held the electricians off the
jobsite until exactly 8 a.m., contrary to prior practice.
Grooms threatened to call Smith if Morris "did not stop
this nonsense." At the end of the day's work on August 5,
Grooms accused Morris of allowing the men to quit at 4:29
instead of 4:30 p.m., and there ensued an agrument about
whose watch governed quitting time.
B. Morris' Discharge
On August 12 Morris was working with his foreman,
Armstrong, on some wiring. It appears from the record that
Armstrong, Morris, and Reed were the only electricians
working on that Friday. There came a lull in the work, and
Morris volunteered to begin the installation of three pipes
which had to be connected to the back of a panel. The task
which Morris attempted to perform required the bending of
a 3-inch conduit to be bent 90 degrees which is a rather
unusual problem. In order to accomplish this result, Morris
took the pipe to the nearest shop and attempted to bend it
in a Greenlea hydraulic bender.
A portion of the bender known as the shoe, which actu-
ally comes into contact with the pipe itself, broke as a result
of the bending. After the shoe had broken and while Morris
was still in the shop area, Reed came to the shop. Morris
showed Reed the broken shoe and Reed responded. "My
friend them things cost money." As a matter of record the
cost of the shoe is $107. At this point Reed left Morris, went
to the onsite personnel office, and prepared a termination
slip for Morris.
During cross-examination of Grooms he was asked if
Morris had an unusual problem concerning the bending of
the conduit. Grooms replied, "I would say it was not a very
common problem." Grooms was then asked, "and he just
picked a solution that didn't work?" Grooms replied, "That
is right. Over bending the 90 was not the wrong procedure;
the method used was the wrong procedure."
Grooms also testified that there was another bender lo-
cated in a van adjacent to the shed where the bender that
was used was located. Both Morris and his working fore-
man, Armstrong, testified that they were not aware of the
fact that there was another bender which might have been
used and might have obviated the problem.
The termination slip given to Morris on August 12, the
day he was discharged, states that the reason for the dis-
charge was "misuse of hyd. bender resulting in broken 3-
inch shoe," signed Superintendent Gene S. Reed. (This ap-
pears in the record as G.C. Exh. 10.) It should be noted that
Reed, the man who signed this termination slip, testified
that he never terminated an employee for breaking a piece
of equipment. The record also shows that the General
Counsel asked Reed. "Was this the first time anyone had
ever been discharged for equipment breakage that you, that
you had charged?" Reed answered "right."
It should be further noted that Fred Butler, the project
manager, testified that as a matter of policy Respondent
"does not discharge an employee for acts that cause dam-
age . . . the only cause that we have for discharge on the
site, is for not performing the work." At this point I showed
Butler the Xerox copy of the termination slip which gives
the reason for the discharge as "misuse of hydrolic [sic]
bender resulting in broken, 3-inch shoe." I asked him to
reconcile his testimony with the written reason for Morris'
termination. He could not, but he said that there were other
reasons which had been explained to him orally.
I then asked this question: In my mind what was the real
reason for the discharge? Was it because he broke a tool,
which was contrary to that which you testified to? Was it
because he did not call in? Or was it because he was making
a nuisance of himself by filing one grievance after the
other?
The last comment is critical to me because under the
interpretation of union activities, pursuit of a grievance has
always been considered by the Board and the courts as a
protected union activity.
When I finished with this series of questions counsel for
Respondent stated that my statement calls for a response
from him and not from Mr. Butler, and with my permission
he would like to make that a little later on. Counsel for
Respondent never did respond to these questions. Butler
did say in relation to the question asked by me that the
particular reason on the termination slip was not the entire
reason which was later amplified by an explanation that
was given to him orally.
There also was some testimony to the effect that Morris
performed "sloppy work," and in this connection the record
shows that he was not unique in that regard. Sloppy work
was not unusual on the project.
Neither Reed, Grooms, nor Butler was able to give any
specified instances of the sloppy work charged to Morris.
There was one instance concerning miswiring a loader
which occurred in May 1976. No action was taken against
Morris for this miswiring at the time the incident occurred,
and the instance took place more than a year before he was
discharged. It is therefore so remote in point of time as to
have no significance.
In rebuttal the General Counsel elicited from Morris the
fact that he did not know the second bender was near the
shop. Morris testified that it had always been at the old
shop which was 1-1/2 or 2 miles from where he was bend-
ing the pipe. Foreman Armstrong, who worked with Morris
on a day-to-day basis for a considerable period of time, also
testified that he did not know there was a second bender
machine near the shop.
Among other reasons given for the termination of Mor-
ris, Respondent states that he was absent two or three times
without having called in, and that this standing alone is a
sufficient basis for discharge. However, the record shows
that an employee named Sauza Maes was absent about 16
days without phoning in during a relatively short period of
time, and he is still working for Respondent. This was ex-
plained by the fact that Maes' wife had been seriously ill,
and some of the absences took place in connection with her
disability. However, the main reason why nothing was ever
done to Maes was explained by Respondent as being due to
the fact that Maes is a member of a minority.
Reed testified that Stewart Arvin, the Corps of Engineers'
electrical inspector, told Reed after Morris was discharged
17
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Arvin would have requested his termination if Reed
had not discharged him. I regard this testimony as irrele-
vant because it was given in relation to events that took
place after Morris was discharged, and Arvin was not
called as a witness by the Respondent.
For whatever it's worth the record also contains General
Counsel's Exhibit I, which is a letter sent from Melones by
Fred M. Butler to Morris congratulating him on having
over 2.500 hours without losing time as a result of a signif-
icant accident on the job.
It would also appear that Morris was never warned about
any derelictions of duty on his part although he was spoken
to about the miswiring of the panel in May 1976. He was
never warned about being away without phoning in. No
complaint was made that his work was not adequate. If
these items come under the heading of "sloppy work," this
is so vague as to be meaningless.
Respondent takes the position that Morris was never rep-
rimanded or warned because he was a shop steward, and
for this reason Respondent leaned over backward to avoid
pointing a finger of accusation against him.
There is no doubt whatever that the zealous pursuit of
grievances engaged in by Morris became a thorn in the side
of Respondent. Some of the complaints registered by Mor-
ris were supported by the facts and rectified by Respondent.
Some seem rather petty, and it is clear from the record that
Morris in his zeal to perfect grievances against the Com-
pany caused at least two work stoppages.
C. The Deferral Issue
Respondent strongly argues that the Board should defer
to the arbitration provision and dismiss the complaint. The
parties to the instant proceeding are operating under a con-
tract which contains provision for processing of grievances
and ultimately for arbitration.
Respondent's brief points out that the agreement (in art.
I, sec. 4) provides that there shall be no strike or lockout
because of any dispute over matters related to this agree-
ment. It goes on to provide that such dispute "must be
handled" in the first instance by a labor-management com-
mittee of three representing the Union and three represent-
ing the Employer. Disputes coming before it are decided by
majority vote. If the committee fails to agree upon or adjust
the matter in issue, it is further provided that the dispute
may be "jointly or unilaterally by the parties ... [referred]
to the council of industrial relations of the electrical con-
tracting industry for adjudication. The council's decision
shall be final and binding on the parties hereto."
Morris was discharged August 12, and on August 26 a
labor-management committee composed of three represen-
tatives of the Union and three representatives of manage-
ment heard the Morris grievance. It is especially significant
that the committee did not consider the issue of whether
Morris was terminated because of his union activities as
shop steward, but considered only the question of whether
Morris was terminated for "cause." A particular complaint
of Morris was that he had been discharged in violation of
the following provision of the contract: "No steward shall
be terminated except for cause, without notifying the Busi-
ness Manager, in writing, 24 hours in advance." It is con-
ceded that no notice as called for had been given. The com-
mittee deadlocked on the grievance and the Union,
pursuant to article I, section 4(a) of the basic contract (G.C.
Exh. 14) notified the committee of industrial relations, the
contractually mandated arbitration body, that the griev-
ance would be appealed to that body' after the case had
been referred to National Electrical Contractors Associ-
ation and the International Brotherhood of Electrical
Workers. Respondent points out that it is customary that,
once a matter has been referred on appeal, an intermediate
step takes place which consists of an appeal to an Interim
Committee which is responsible for hearing the grievance
and making recommendations. There is no provision in the
contract that sets forth this step. The Interim Committee in
this instance consisted of Mr. H. Zieman of the ninth dis-
trict of the IBEW and Mr. Floyd Shipp, NECA's field rep-
resentative in San Mateo. The committee convened in Oc-
tober 1977. It is to be noted that the Employer's interest
was represented by Mr. Coleman and that of Mr. Morris by
Neil Jennings, business agent of Local 591. It is impossible
from the record to determine what evidence was presented
to this Interim Committee. Suffice it to say that Morris was
not present at this meeting, and the Interim Committee rec-
ommended that the Union withdraw the grievance. This
step was taken by Jennings and the Union withdrew a re-
quest for a hearing by the CIR which, at a later stage,
unanimously accepted the recommendation of the Interim
Committee thereby concluding the matter. In its recom-
mendation the Interim Committee stated "the Union may
still take the matter to the CIR" and it also stated "Jack
Morris may still pursue this matter with the NLRB." Gen-
eral Counsel points out that Morris did pursue the charge
with the Board and the Region issued a complaint in the
instant case.
It is well settled that the appropriateness of deferral to
arbitration was initially established in the case of Spielberg
Manufacturing Company, 112 NLRB 1080, 1082 (1955),
which states the standards for deferral to arbitration are
that (I) the proceedings have been fair and regular, (2) that
all parties had agreed to be bound, and that (3) the decision
of the arbitration panel is not clearly repugnant to the pur-
poses and policies of the Act. There have been many cases
decided involving both the Spielberg principle and the prin-
ciple set forth in the Collyer case and some changes and
additions have been added to the original criteria. For ex-
ample, in the Radio Television Technical School, Inc., t/a
Ryder Technical Institute, 199 NLRB 570 573 (1972), ap-
pears the following language:
Where, as here, the arbitrator has not addressed
himself to the unfair labor practice issue it does not
encourage voluntary settlement of disputes, or effectu-
ate policies of the Act, to give binding effect in an
unfair labor practice proceeding to the arbitration
award. [This principle was earlier set forth in the case
of Raytheon Co., 140 NLRB 883 (1963). More recently
in the case of Brewery Delivery Employees Local Union
46, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Port Distribut-
ing Corp.), 236 NLRB 1175 (1978), decided June 23,
) The contract provides that the decision of the committee of industrial
relations, otherwise known as CIR, shall be final and binding and that either
party may appeal a labor-management decision on a grievance to that body.
18
MELONES CONTRACTORS
1978, it was held that deferral to arbitration is inappro-
priate when the arbitrator does not address himself to
the unfair labor practice issue and the award is con-
trary to unfair labor practice decisions under the Act.j
A major obstacle to deferral in the instant case is that the
grievance over Morris' discharge never got beyond an in-
terim step in the grievance resolution procedure.
Of course it is clear, as alleged by the General Counsel,
that the reason for Morris' termination was due to his pro-
clivity to continuously file grievances. Thus the General
Counsel concludes that Morris was terminated for engaging
in protected concerted activities which, it has repeatedly
been held by the courts and the Board, is a term that en-
compasses the processing of grievances under the collective-
bargaining agreement.
In 1977, the Ninth Circuit Court of Appeals adopted the
Banyard standards in Stephenson v. N.L.R.B., 550 F.2d 535
(1977). Attempting to define more clearly the Banvard stan-
dards, the Ninth Circuit ruled that "the clearly decided re-
quirement that the arbitrator's decision must specifically
deal with statutory issues." While the court did not say a
written award was necessary to satisfy the "clearly decided"
prerequisite, the court held that there must be substantial
and definite proof that the unfair labor practice "issue and
evidence were expressly presented" and that the award "in-
disputably resolves that issue in a manner entirely consis-
tent with the Act." In this connection it should be noted
that the record is silent with respect to precisely what came
up before the interim panel. Certainly it is clear that the
panel had no final authority to make a binding decision,
and there is no indication of what subject matters were
discussed at the panel meeting. Morris was not himself pre-
sent, and the unfair labor practice aspect of the case (which
involves the fact that Morris was an indefatigable and mili-
tant advocate of whatever grievance he was dealing with at
a given time) was not considered. None of this material was
mentioned in the record nor does it appear that any atten-
tion was given to these elements of the case. As a conse-
quence, without more, I find that the so-called arbitration
hearing was not, in effect, an arbitration hearing at all. It
did not accord finality to the testimony that was presented,
whatever that may have been, with the result that the deci-
sion was merely to withdraw the complaint which was re-
pugnant of the policies of the Act.
The General Counsel argues that it was the intent of
Spielberg to limit alleged discriminatees to one forum but
not to prevent them from reaching any. Since Morris has
been left by the Union to pursue his remedy with the
Board, Respondent may not now deny him that opportun;-
ty.
Where there is no indication that the unfair labor prac-
tice issue was considered by the arbitration tribunal, the
Board will not defer. International Association of Machinists
and Aerospace Workers, District 15, AFL CIO (Burroughs
Corporation), 231 NLRB 602 (1977); Alfred M. Lewis, Inc.,
229 NLRB 757 (1977); Versi Craft Corporation, 227 NLRB
877 (1977); also see United Parcel Service, Inc., 234 NLRB
483 (1978).
If the arbitration proceeding has been fair and regular
and the other Spielberg standards are met, the Board will
defer to the award. In 1977, the Board indicated some of
the defects that will cause it to refuse deferral under this
standard. In "Division of Super Valu Stores, Inc., 228 NLRB
945, deferral to the result reached in step 4 of a bi-partite
grievance procedure was denied when the employee griev-
ants were not present at the meeting, no testimony was
taken, and no transcript was available .... " There was no
award which could be examined for its conformity with
Spielberg requirements.'
Concluding Findings and Analysis
The explanations offered by Respondent to support its
termination of Morris, overall, are not persuasive. He was
absent two or three times in approximately 14 months of his
employment. A fellow employee, Sauza Maes, was absent
from work approximately 16 times on occasions when these
absences were unreported or unexcused, and he is still em-
ployed by Respondent. No explanation of this disparate
treatment was offered except that Maes is a minority em-
ployee.
Reed gave contradictory testimony concerning the Com-
pany's policy regarding an employee who broke a tool on
the job and was not a convincing witness. I do not credit his
testimony where it conflicts with that given by Morris.
Overall, I was impressed with the demeanor of Morris, and
I credit his testimony because he spoke with candor and
directness.
Grooms was vague and uncertain in his answers and did
not make a convincing witness.
In support of a generalized statement that Morris did
sloppy work, which standing alone is meaningless, Reed
could not recall specific instances except the May 1976 oc-
currence involving miswiring a load panel. According to
Respondent's brief, this was a potentially serious mistake
by Morris. It is to be noted that he was not warned about
his error and nothing was done about this matter from the
date of its occurrence May 1976, until approximately Au-
gust 1977. This is the only specific instance offered by Re-
spondent in support of its contention that Morris did sloppy
work. Furthermore, it is not denied on the record that there
was a good deal of "sloppy work" performed on the project
by other employees, according to the uncontradicted testi-
mony of Grooms. Grooms also testified that he complained
to Morris' supervisor, Armstrong, about the way an em-
ployee, Wayne, as handling his tools, but Grooms did not
complain about Morris.
By far the most impressive witness of Respondent was
Project Manager Fred Butler. While I credit much of his
testimony, attention is called to the fact that he corrobo-
rated Reed's testimony with respect to the fact that the
Company has a policy not to terminate an employee for
breaking a tool. Butler, too, was vague as to sloppy work
performed by Morris.
It is to be noted that additional reasons for Morris' dis-
charge were described by Respondent after Morris was ter-
minated. At a later management meeting which took place
on August 26, Reed brought up the "502" (drunk driving)
charge against Morris. Morris denied this charge and the
matter was dropped. Reed also said that Arvin. U. S. Corps
4Many cases were ably cited and summarized in the bnefs filed herein,
and they have all been considered
19
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Engineers inspector, allegedly told Reed that Morris was
an unsafe employee who should be fired. This allegation by
Arvin is irrelevant because it was made after Morris was
discharged, and Arvin was not offered as a witness at the
hearing.
During the instant trial Reed recapitulated that he fired
Morris because he did not use his head in handling the
Greenlea bender, for miswiring a load panel in May 1976,
for missing work "a couple of times" without calling in, and
for generally "sloppy work."
It is well settled that when, as here, the asserted reasons
for a discharge do not withstand examination, the Board
can infer that there is another reason-an unlawful one
which the employer seeks to conceal-for the discharge.'
The facts and circumstances here provide substantial sup-
port for the inference, which I draw, that Morris was dis-
charged for filing and processing too many grievances con-
duct which is a protected activity under the Act. The
defenses advances by Respondent do not hold water. It is
not the policy of Respondent to discharge an employee for
breaking a tool; that was the asserted reason on his termi-
nation slip. He failed to report for work on "two or three"
occasions in the 14 months he was employed; a fellow em-
ployee was absent without calling in on about 16 occasions
over a short period of time and is still working for Respon-
dent. This disparity of treatment is explained as being due
to the fact that the employee is a member of a minority.
Morris is accused of doing "sloppy work" and as proof of
this deficiency in his job performance Respondent points to
a single instance which occurred in May 1976. In order to
bolster its case Respondent first leans on a charge of drunk-
enness (the so-called "502" offense) and then drops this
charge when it is denied by Morris. Then, clutching at
straws, Respondent states that after Morris was discharged
an army inspector told Reed that he would have recom-
mended Morris' discharge as an unsafe employee. Morris
earned the hostility of Reed.
I conclude that Morris was discharged for too zealously
pressing grievances in his role as shop steward. This is a
protected activity under the Act. I find that by discharging
Morris under the circumstances described supra, Respon-
dent violated Section 8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, I hereby make the follow-
ing:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 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 Respondent, by and through its electrical superin-
tendent, Gene Reed, on August 12, 1977, engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
8(a)(3) of the Act by discharging Jack Morris because he
had engaged in the protected concerted activity of filing
grievances.
Shattuck Denn Mining Corporation (Iron King Branch) v. N.L. R. B., 362
F.2d 466, 470 (9th Cir. 1966).
4. The arbitration proceeding involving employee Morris
in August 1977 and the circumstances leading thereto were
unfair and prejudicial against Jack Morris, thus rendering
the opinion repugnant to the purposes and policies of the
Act.
5. The unfair labor practices of the Respondent found
and concluded herein affect commerce within the meaning
of Section 2(6) and (7) of the Act.
6. The Respondent has not violated the Act in any re-
spects other than those specifically found herein.
THE REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, it will be recommended that the Re-
spondent cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the Act.
It further having been found that Respondent discrimi-
natorily discharged Jack Morris in violation of Section
8(a)(1) and 8(a)(3) of the Act, the recommended Order will
provide that the Respondent offer him full reinstatement
with backpay and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651
(1977).6
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 7
The Respondent, Melones Contractors, its officers,
agents, successors and assigns, at the site of the Melones
Dam located near Jamestown, California, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for the purpose of discouraging employees from
engaging in union or other protected concerted activity for
their mutual aid or protection.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purposes of collective bargaining or other mutual aid or
protection or to refrain from any and all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Jack Morris immediate and full reinstatement
to his former position or, if such position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights or privileges, and make him whole
for any loss of earnings in the manner set forth in "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
6See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
20
MELONES CONTRACTORS
roll records, social security payment records, timecards,
personnel records, and all other records necessary to ascer-
tain the amount of backpay. if any, due under the terms of
this Order.
(c) Post at its facility at the Melones Dam in Jamestown.
California, copies of the attached notice marked "Appen-
dix."' Copies of the notice on forms provided by the Re-
' In the event that 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
National 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."
gional Director for Region 32, after being signed by an
authorized representative of the Respondent, shall be
posted by Respondent immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 32, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
21