Sachs Electric Co.

National Labor Relations Board - Board Decisions

Feb 28, 1986

278 N.L.R.B. 866 (N.L.R.B. 1986)

866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sachs Electric Company and Joseph T. Verlin. Case
7-CA-23230
28 February 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 21 December 1984 Administrative Law
Judge Benjamin Schlesinger issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The relevant facts, which are essentially undis-
puted, reveal that the Charging Party, Joseph
Verlin, was employed by the Respondent from 24
October 1983 until 3 February 1984.1 During that
period, Verlin, acting on what he believed to be his
authority as union steward, 2 spoke out on other
employees' behalf to the Respondent's general fore-
man Ronald Martin.3 The record reveals that on
one such occasion during the last week in January,
Verlin complained to Martin, and subsequently to
the Union's business manager Roy Blain about
Martin's failure to allocate the available overtime
work to other employees as required under the
contract. On 3 February Martin was instructed by
Project Engineer Michael Frank to lay off one of
three individuals due to a lack of work. Martin se-
lected Verlin for layoff, purportedly because he
was less efficient than the other two employees.
On 7 February the Union filed a grievance on
Verlin's behalf alleging that, as union steward,
Verlin had been improperly selected for layoff
under article II of the contract.4 Further, on the
basis of information received from Verlin, the
Union filed another grievance alleging that Martin
had failed to comply with the contract by not allo-
cating overtime work to other employees.
i All dates are in 1984 unless otherwise indicated.
2 The Union involved here is the International Brotherhood of Electn-
cal Workers, AFL-CIO, Local Union No. 107
3 Verlin apparently interceded on behalf of employee Bloye who was
to be discharged by Martin for spending too much time in the restroom
Verlin also took issue with Martin over the length of employee coffee-
breaks, and brought safety violations to Martin's attention
4 Art II of the contract essentially provides that a union steward shall
be the last person laid off with the exception of the foreman It further
provides that "under no circumstances shall the Steward be discriminated
against because of the faithful performance of his duties as Steward."
On 22 February a Labor Management Commit-
tee, composed of an equal number of Respondent
and union representatives, heard evidence on the
grievances and concluded that Verlin's layoff was
not improper as he was not a steward when he was
laid off. The Committee further decided that the
Respondent should pay $75 into an Apprenticeship
Fund as settlement of the grievance involving the
overtime work.
On a charge filed by Verlin on 16 March, the
General Counsel issued the complaint in this case
alleging that the Respondent had violated Section
8(a)(3) and (1) of the Act by laying off Verlin be-
cause of his "membership in and activities on
behalf of the Union and because of his protected
concerted activities." More specifically, the issue
raised by the complaint, as evident from the record
and the judge's decision, is whether Verlin was se-
lected for layoff because of his activities either as a
union steward or as an employee acting on behalf
of other employees to enforce the contract.
The judge found that the question, whether
Verlin had been discriminated against for activities
engaged in as a union steward, had been decided
by the Committee and that deferral to the Commit-
tee's decision on this issue was proper, citing Olin
Corp., 268 NLRB 573 (1984). No exception was
taken to this finding and we adopt the judge's find-
ing in this regard. However, the judge also found
that the question whether Verlin had been selected
for layoff for engaging in protected activity as an
employee, rather than as a steward, had not been
presented to the Committee for resolution. He,
therefore, declined to defer to the Committee's de-
cision on this issue and instead found, on the
merits, that Verlin had been unlawfully laid off for
complaining about Martin's failure to share the
overtime work as required by the contract.5 Con-
trary to the judge, we find that deferral to the
Committee's decision on this latter issue is also ap-
propriate.
Under Olin, supra, the Board will view a statuto-
ry question before it as having been adequately
considered by an arbitrator if. (1) the contractual
question before the arbitrator is factually parallel to
the unfair labor practice issue; and (2) the arbitra-
tor has been presented generally with the facts rel-
evant to resolving the unfair labor practice.
Here, there is no question that the contractual
and statutory issues are factually parallel. In its
5 The judge did not find that Verlm's conduct in speaking out on other
employees' behalf was a factor in his layoff The General Counsel did not
except to the absence of such a finding. Consequently, the only issue
before the Board is whether Verlin was unlawfully laid off for complain-
ing about Martin's failure to abide by the contractual obligation concern-
mg the sharing of overtime work
278 NLRB No. 121
SACHS ELECTRIC CO. 867
contractual grievance , the Union asserted, inter
alia, that the Employer discriminated against Verlin
by laying him off due to his activities as a union
steward . In this unfair labor practice proceeding,
the General Counsel alleges that Verlin was unlaw-
fully laid off because of his attempt to force com-
pliance with the collective-bargaining agreement.
The conduct allegedly engaged in by Verlin as
union steward , and which the Union asserted to the
Committee was the cause of the discriminatory
layoff, is virtually identical to that purportedly en-
gaged in by Verlin as an employee , and alleged by
the General Counsel to have been the cause of
Verlin's layoff.
Thus, the Union asserted before the Committee
that, as union steward , Verlin complained about
Martin 's failure to share overtime work with em-
ployees as required by the contract and that, be-
cause of his complaint, Verlin was laid off.° Here,
the General Counsel alleges that , as an employee,
Verlin complained about Martin 's failure to abide
by the contractual requirement concerning the
sharing of overtime work and that it was this con-
duct which led to his layoff. Except for the fact
that the contractual grievance refers to Verlin as a
steward, while the complaint refers to him as an
employee, the contractual and statutory issues are
clearly identical.
To decide the statutory issue, the Board would
have to consider such factual questions as whether
Verlin actually engaged in the above -described
conduct, whether he did so in furtherance of a col-
lective-bargaining agreement , and whether it was
his complaint about Martin, or some other reason
(nondiscriminatory), which resulted in his layoff.
Likewise, the contractual question of whether
Verlin was selected for layoff because he com-
plained, as steward, of Martin's refusal to share
overtime work, rests on the same set of facts and
circumstances. In light of the above , we conclude
that the contractual and statutory issues are indeed
factually parallel.
a The issue before the Committee was not, as found by the judge,
whether Verlin was a steward but rather whether his layoff was precipi-
tated by his complaint, as union steward , of Martin's refusal to share the
overtime work with employees . Thus, in a letter submitted by Verlin to
the Committee in support of his grievance , Verlin states, "I feel the
reason I was laid off is because of disagreements between the foreman
and myself acting as a union representive of [sic ] interpretation of the
contract ." The fact that the Committee, after hearing all the evidence,
resolved the grievance by finding that Verlin was not a steward is no
indication that it did not "adequately consider" the unfair labor practice
issue under the Olin standards . Under Olin , the determination of whether
a statutory issue has been "adequately considered" by an arbiter hinges
not on the result reached by the arbiter but rather , as indicated, on
whether the contractual and statutory issues are factually parallel and on
whether the facts necessary to resolve the statutory question have been
presented generally to the arbiter.
We also find that the facts needed to resolve the
unfair labor practice question were generally pre-
sented to the Committee. As stated, in his letter to
the Committee in support of his grievance, Verlin
claimed that his layoff was caused by disagree-
ments between Martin and himself. According to
Verlin, these disagreements related solely to Mar-
tin's misuse of overtime work and to Verlin's other
activities on behalf of employees generally. Fur-
ther, in support of the grievance pertaining to Mar-
tin's misuse of overtime work, Verlin submitted an-
other letter to the Committee in which he accused
Martin of violating the contract as it pertained to
overtime work and insisting that the work be
equally divided among all employees. Union Busi-
ness Manager Blain testified, without contradiction,
that Verlin had "presented his case" to the Com-
mittee, including those facts pertaining to his
layoff. Finally, Union President Frank McComb,
who served as a member of the committee, testi-
fied, without contradiction, that Verlin was ques-
tioned by the Committee members on matters
raised by the grievances. On the basis of the above
facts, we conclude that the facts necessary to re-
solve both the statutory and the contractual issues
were before the Committee.
Having found that the contractual and statutory
issues are factually parallel and that the facts rele-
vant to resolving the unfair labor practice issue
were generally presented to the Committee, we
conclude that the statutory issue was adequately
considered by the Committee and that deferral to
its decision is therefore appropriate. Accordingly,
we shall dismiss the complaint in its entirety.
ORDER
The complaint is dismissed.
MEMBER DENNIS , dissenting in part.
Contrary to my colleagues , and in agreement
with the judge, I would not defer to the Labor-
Management Committee's decision the complaint
allegation that Verlin was unlawfully laid off for
his activities as an employee in attempting to en-
force the contract. I also agree with the judge on
the merits , for the reasons he stated , that the layoff
violated Section 8(a)(1) of the Act.
In brief, Verlin was laid off on 3 February 1984;
two other employees were retained . The Union
filed a grievance on 7 February, alleging he had
been improperly laid off under section 2.15 of the
applicable collective-bargaining agreement. That
section provides that a union steward is to be the
last person laid off and is not to be discriminated
against. As the majority recognized, the Union,
inter alia, alleged before the Committee that Ver-
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tin's layoff resulted from his complaints "as Union
steward" about improper assignment of contractual
overtime . The Committee denied the grievance on
the ground that the evidence did not support Ver-
lin's claimed steward status . The Committee did
not address , nor did it have the power to address,
any issue of discrimination against Verlin on ac-
count of his contract complaints as an employee,
because the sole article of the labor agreement al-
legedly violated protects only stewards . Accord-
ingly, the issues involved in the grievance and
unfair labor practice proceedings are not parallel,
and thus deferral is inappropriate under Olin Corp.,
268 NLRB 573 , 574 (1984).
James P. Stevens, Esq., for the General Counsel.
R. Troy Kendrick Jr., Esq., and Deborah A. Weedman,
Esq. (Blumenfeld, Sandwelss, Marx, Tureen, Ponfil &
Kaskowitz PC), of St. Louis, Missouri, for the Re-
spondent.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge.
On February 3, 1984,1 Ronald Martin , general foreman
of Respondent Sachs Electric Company, laid off Charg-
ing Party Joseph T. Verlin, while retaining two other
employees, Tom Bossardet and Gary Bloye . The Gener-
al Counsel, claiming that the selection of Verlin was
caused by his protected and concerted activities as a
steward for the International Brotherhood of Electrical
Workers, AFL-CIO, Local Union No. 107 (the Union),
or as an employee of Respondent , complains that Verlin
was discharged in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act. Respondent denies
that it violated the Act in any manner and affirmatively
alleges that Verlin's claim was denied in a grievance pro-
cedure, and that the denial should be deferred to under
the doctrine enunciated in Spielberg Mfg. Co., 112 NLRB
1080 (1955).2
Respondent does not contest that it is subject to the ju-
risdiction of the Act. I find, as Respondent admits, that it
is a corporation duly organized under and existing by
virtue of the laws of the State of Missouri, that it main-
tains its principal office and place of business in St.
Louis, and that it is engaged in providing electrical con-
struction and related services . It maintains various instal-
lations in the United States, including one at the James
DeYoung Power Station in Holland, Michigan, where
Verlin was employed . During the year ending December
31, 1983, a representative period, Respondent had gross
revenues in excess of $500,000, and it performed ' services
valued in excess of $60,000, of which in excess of
$50,000 were performed in and for various enterprises lo-
cated in States other than the State of Michigan. I con-
' All dates refer to the year 1984 , unless otherwise stated.
S The relevant docket entries are as follows : Verlin's unfair labor prac-
tice charge was filed on March 16, the complaint issued on April 30, and
the hearing was held in Grand Rapids, Michigan , on August 15.
elude, as Respondent admits , that it is an employer
within the meaning of Section 2(2), (6), and (7) of the
Act. I also conclude, as Respondent admits, that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
The Union, on February 7, grieved Verlin's discharge
as a violation of article II, section 2.15, of its collective-
bargaining agreement with the Grand Rapids Division,
Michigan Chapter, National Electrical Contractors Asso-
ciation Inc., under which Respondent was bound. That
section reads , in part, as follows:
2.15. The Business Manager of the Union shall
have the right to appoint a Steward at all shops and
on all jobs. He shall notify the Employer in writing
as to who the Steward is in the shop or on the job.
The Steward shall be a working employee who, in
addition to his work, shall be permitted to perform
during the working hours such of his Union duties
as may be required . The Steward or Business Man-
ager shall be notified of all overtime by the Em-
ployer or his representative whenever possible. He
shall not leave the job site to which he is assigned
without notifying the Employer or the Employer's
representative on the Job. The Steward shall be the
last man laid off the job with the exception of the
Foreman and in the event of reduction of working
forces due to transfers, temporary layoff, or other
reasons, the Steward shall be the first workman re-
turned to the job, provided he is qualified to per-
form the remaining work. These conditions shall
exist for the duration of any job. Under no circum-
stances shall the Steward be discriminated against
because of the faithful performance of his duties as
a Steward.
On February 22, the labor management committee
considered Verlin's discharge, as well as another griev-
ance initiated by Verlin who alleged that Martin had
worked overtime in violation of his contractual duty to
divide overtime as equally as possible among all the em-
ployees. The employer representatives proposed that
both grievances be settled by Respondent's payment into
the joint apprentice and training fund of an amount
equivalent to the straight-time wages for the overtime
hours Martin admitted that he worked. The union repre-
sentatives counterproposed that Respondent pay an
amount equivalent to 6 hours . The Employer representa-
tives, stating that they felt that neither grievance was jus-
tified, agreed to a settlement of $75 to be paid to the
fund, if the Union would drop all its charges . After ini-
tial rejection, the union representatives agreed to the last
offer. This agreement and decision by the full committee
constituted a complete disposition of both grievances.
Union Business Manager Roy Blain testified that the
reason for the Union's concurrence was that he had
never notified Respondent in writing that Verlin was the
union steward and that, as a result of his slip up, the
Union could not support its claim that Verlin was a
steward and was thus entitled to superseniority and to be
laid off after all the other employees . Because the Union
agreed that Verlin was not the steward, the committee's
SACHS ELECTRIC CO. 869
decision effectively disposes of an additional claim that
Verlin was discriminated against because of the "faithful
performance of his duties as Steward ." Verlin was not a
steward, as decided by the committee; and there is no
basis for the unfair labor practice complaint's allegation
that Verlin was discharged for the very reason that the
committee held he was not. I see no reason why this part
of the complaint should not be deferred to under Spiel-
berg. The committee considered what was Verlin's posi-
tion, found that he was not a steward , and dismissed his
claims . There is no allegation that the grievance hearing
did not otherwise comport with the requirements set
forth in Spielberg. The issue of Verlin's status as a stew-
ard before the committee is factually parallel with the
issues herein and the committee was presented with
many of the same facts presented herein and relevant to
resolving the issue of Verlin's occupying the position of
steward . Olin Corp., 268 NLRB 573 (1984). Accordingly,
I dismiss this part of the complaint.
However, the General Counsel alternatively contends
that Verlin was discharged because of his concerted and
protected activities as an employee. This allegation was
not presented to the labor-management committee. The
sole issue before the committee was Verlin's rights as a
steward . Because the committee agreed that Verlin was
not a steward, it made no difference that his discharge
resulted from his faithful performance of his duties, be-
cause he could not possess the duties of an office which
he did not hold.3 I find merit in this allegation of the
complaint. When Verlin was terminated, Martin said: "D
day buddy, we are even." Martin did not deny making
this statement, and Verlin's testimony gave meaning to
Martin's indication that he was retaliating against Verlin
for his complaint only a week before that Martin was not
allocating overtime in the way that was required by the
agreement . Under Wright Line, 251 NLRB 1083 (1980),
enfd. on other grounds 662 F .2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). See also NLRB v Transpor-
tation Management Corp., 462 U.S. 393 (1983); the Gener-
al Counsel presents a prima facie case when it is shown
that a reason for the discipline was one which violates
the Act. The burden then shifts to the employer to dem-
onstrate that it would have taken the same action even in
the absence of a violation.
Although I am convinced that Martin was under in-
structions to lay off one of three employees because of
insufficient work, I find that Respondent has failed to
meet its burden that it would have laid off Verlin and
not one of the other employees. Martin testified that he
selected Verlin because "he was the most expendable
man at that time based on production.... I thought
that Tom Bossardet and Gary Bloye were performing
more work, more efficiently." Martin's subjective judg-
ment might be perceived as difficult to overcome,4 but I
0 Respondent's contention based on certain of Blam's responses at Tr.
87 is maccurate. My questions to Blain were premised solely on sec. 2.15
of the collective-bargaining agreement and did not involve Verlin's ac-
tivities as an employee. Finally, although Verlin's grievance as an em-
ployee appears to arbitrable, Respondent waived any claim to a defense
under Collyer Insulated 11rre, 192 NLRB 837 (1971).
4 Martin conceded that there was no documentary evidence to prove
which of the three employees worked faster or performed more work.
am persuaded that Martin 's explanation is unworthy of
belief. Martin never criticized the quality of Verlin's
work; but once he complained about the quality of Bos-
sardet's work, and on another occasion the work of both
Bloye and Bossardet had to be redone. It was Verlin
whom Martin asked to assist in correcting the others'
work.
Although Martin complained on several occasions to
Verlin about his rate of progress or his taking of break-
time, he complained just as much to the two other em-
ployees. Indeed , just before Christmas 1983, Martin
almost fired Bloye for absence from the job and Verlin
interceded with Martin on Bloye 's behalf. Thereafter,
Martin complained to Verlin on several occasions about
Bloye, stating that as soon as work slackened, he was
going to lay Bloye off.
Instead, Martin selected Verlin, who had complained
to Martin in late January that Martin was not sharing
overtime with the other employees , as the bargaining
agreement required . On January 31, Verlin and Blain dis-
cussed the overtime issue with Martin .5 Three days later,
Verlin was laid off, accompanied by Martin 's "we're
even" statement, which Martin not only did not deny but
also did not explain. I construe "even" as "Having exact-
ed full revenge,"e and Martin 's silence leads me to find
that he was retaliating against Verlin for his concerted
and protected activities in attempting to force Martin's
compliance with Respondent's collective-bargaining
agreement . Interboro Contractors, 157 NLRB 1295 (1966),
enfd. 388 F.2d 495 (2d Cir. 1967); NLRB v. City Disposal
System, 465 U.S. 822 (1984).
I conclude that Respondent violated Section 8(a)(1) of
the Act and that Respondent's activities, occurring in
connection with its business operations, have a close, in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I will recommend that Respondent cease
and desist therefrom and that it take certain affirmative
action to effectuate the policies of the Act. Because the
Holland , Michigan job ended on April 4, I will not rec-
ommend that Verlin be reinstated to his prior position;
but I shall recommend that Respondent make Verlin
whole for loss of earnings or other benefits he was de-
prived of in accordance with the formula set forth in F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest
thereon to be computed as set forth in Florida Steel
Corp., 231 NLRB 651 (1977).8 In addition , I shall order
5 I discredit Martin's testimony that Bloye and Bossardet were privy to
this discussion or complaint. Neither employee testified, and it was Verlin
alone who sought the Union's assistance in resolving the problem.
American Heritage Dictionary of the English Language, p. 454 (1st ed.
1959).
7 Bossardet and Bloye were laid off about a week before April 11,
1984. Verlin's backpay shall terminate on the date the other employees
were laid off.
8 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that any reference to Verlin's layoff on February 3, 1984, spondent's principal place of business is in St. Louis, Mis-
be removed from Respondent's personnel records. Final- souri, it would not effectuate the policies of the Act to
ly, I shall order that Respondent mail the recommended require it to post the notice there.
attached notice to the employees employed by Respond- '[Recommended Order omitted from publication.]
ent on February 3, 1984, and to the Union. Because Re-