Todd Shipyards Corp.

National Labor Relations Board - Board Decisions

Apr 24, 1973

203 N.L.R.B. 114 (N.L.R.B. 1973)

114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Todd Shipyards Corporation , Houston Division and In-
ternational Brotherhood of Boilermakers , Iron Ship
Builders, Blacksmiths, Forgers and Helpers Local
Union No. 469, AFL-CIO. Case 23-CA-4418
April 24, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PEN ELLO
On October 25, 1972, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed; provided, however, that: The Board shall
retain jurisdiction of this proceeding for the purpose
of entertaining an appropriate and timely motion for
further consideration upon a proper showing that
either (a) the dispute has not, with reasonable prompt-
ness after the issuance of this decision, either been
resolved by amicable settlement in the grievance pro-
cedure or submitted promptly to arbitration, or (b)
the grievance or arbitration procedures have not been
fair and regular or have reached a result which is
repugnant to the Act.
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge: This
case came on to be heard before me at Houston, Texas, on
September 28, 1972, upon a complaint' issued by the Gen-
1 The complaint in this proceeding was issued on August 3, 1972, upon a
charge filed on June 29, 1972, as amended on July 24, 1972, copies of which
were served on the Respondent on June 30 and July 25, 1972, respectively.
eral Counsel of the National Labor Relations Board and an
answer filed by Todd Shipyards Corporation, Houston Di-
vision, hereinafter called the Respondent. The issues raised
by the pleadings in this proceeding relate to whether, or not
the Respondent violated Section 8(a)(1) of the National
Labor Relations Act, as amended, by conduct hereinafter
specified. Upon the conclusion of the hearing, and at the
request of the Administrative Law Judge, the General
Counsel and the Respondent filed legal memoranda devot-
ed to the issue of whether it would be appropriate in this
case for the National Labor Relations Board to withhold or
defer its exercise of jurisdiction over this labor dispute in
favor of the contractual grievance and arbitration provi-
sions contained in a current collective-bargaining agree-
ment to which the Respondent and Local 469 of the
International Brotherhood of Boilermakers are signatories.
Upon the entire record in this case, I hereby make the
following:
FINDINGS OF FACT AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation, maintains
an office and shipyard at Houston, Texas, where it is en-
gaged in the shipbuilding industry. During the 12-month
period preceding the issuance of the complaint in this case,
the Respondent sold and shipped products valued in excess
of $50,000 to points located outside the State of Texas. The
complaint alleges, the answer admits, and I find that the
Respondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
The complaint also alleges, the answer admits, and I find
that International Brotherhood of Boilermakers, Iron Ship
Builders , Blacksmiths, Forgers and Helpers Local Union
No. 469, AFL-CIO, hereinafter called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES ALLEGED
The complaint alleges that on June 9, 1972, the Respon-
dent interfered with, restrained, and coerced its employees
by threatening its employee, Thomas Driver, with physical
abuse because Driver assisted the Union and acted in his
capacity as a representative of the Union. More specifically,
the General Counsel alleges that, by and through its agents
W. E. Lewis and J. E. Novak, the Respondent threatened
to kick Driver in his posterior regions, because Driver had
acted on behalf of another employee in his capacity as a
steward for the Union.
By its answer to the complaint, the Respondent denies
that Lewis and Novak are its agents within the meaning of
Section 2(13) of the Act, and also denies that it has engaged
in any acts or conduct in violation of the Act. In addition,
by contentions raised at the outset of the hearing, the Re-
spondent asserts that the dispute involving Driver is, in the
203 NLRB No. 20
TODD SHIPYARDS CORPORATION
maxim of the law, a matter de mininis non curat lex,2 too
trifling for the exercise of the Board's jurisdiction. Alterna-
tively, the Respondent prays that the Board should with-
hold or defer its jurisdiction over the alleged dispute
involving Driver in favor of the contractual provisions
agreed to by the parties for the resolution of disputes as
contained in an existing collective -bargaining agreement.
By way of background, the record reflects that the Re-
spondent and the Union have a bargaining history dating
back to 1949. As originally certified by the Board, the unit
of production and maintenance employees was represented
by the Houston Metal Trades Council, AFL-CIO, a joint
council composed of metal craft unions, including the
Union involved in this proceeding. In 1959, however, the
Union was recognized as the bargaining agent for the
Respondent's employees engaged in the boilermakers craft.
At the same time, the International Association of Machin-
ists was recognized by the Respondent as the bargaining
representative for employees in the machinist craft, and the
Houston Metal Trade Council was recognized for the re-
mainder of the employees in the preexisting production and
maintenance unit . All three labor organizations are signato-
ries to a current collective-bargaining agreement, which was
entered into on January 16, 1972, for a period of 3 years.
The record also reflects that the 23-year bargaining history
between the parties is unblemished by any prior proceeding
in which the Respondent has been found to have violated
the National Labor Relations Act.
As a part of its Houston operations the Respondent main-
tains a training school for welders . The school is operated
primarily for training nonemployees, but it also functions to
some extent for the purpose of training employees in laborer
and other classifications, who attend the school on their
own time in order to qualify as welders. The training school
is conducted on both the first and second shifts, and W. E.
Lewis, assisted by J. E. Novak, is in charge of the school on
the first shift. An additional function assigned to Lewis as
a part of his instructors duties is testing employees who wish
to qualify as first-class welders. The test and its procedures
are specified by the United States Coast Guard and the
American Bureau of Ships. It is Lewis' function to conduct
the initial portion of the test to determine whether the em-
ployee possesses the basic welding skills for a first class
certificate. If Lewis' visual inspection, described in the rec-
ord as an "eyeball" review, reveals that the employee does
possess the basic skills , the weld test material is then submit-
ted to an independent testing laboratory where an X-ray is
performed to determine whether the product satisfies the
specifications required by the Coast Guard and the Bureau
of Ships. If the employee passes both the visual and the
X-ray specifications, he is eligible for promotion to the clas-
sification of first-class welder, with a corresponding in-
crease in his hourly wage.
As of the date of the hearing in this proceeding, Thomas
Driver had been employed by the Respondent for a period
of approximately 5 years. Driver was hired as a trainee, and
as a result of compliance with the procedures outlined
above subsequently qualified as a boilermaker-welder first
2 In support of this contention the Respondent relies on N.L.R B v. Big
Three Industrial Gas & Equipment Co, 441 F.2d 774, 778 (C.A. 5 )
115
class. At times material to this case, Driver was the Union's
steward on the second shift representing those employees in
the boilermaker craft who are represented by the Union.
There is also some evidence in the record, however, that
from time to time stewards , including Driver, entertain and
process grievances lodged by employees outside the craft or
work classifications included in the group they are techni-
cally appointed to represent.
During the early part of June 1972, Driver was ap-
proached by one Rodriquez, who was employed on the
second shift as a cleanup man. Rodriquez complained to
Driver that he had been unsuccessful in his attempts to have
the Respondent assign him as a trainee in the training pro-
gram for welders . Rodriquez asked that Driver go to the
personnel department and intervene on his behalf. Driver
contacted Kendall Williams , the Respondent 's assistant
personnel manager, and explained Rodriquez' problem.
Williams agreed that Rodriquez should be permitted to take
the test for the welders training program, and agreed to
provide a written permit to allow Rodriquez to go to the
testing area on his own time . On June 8, 1972, accompanied
by Driver, Rodriquez proceeded to the test area, where
W. E. Lewis was in charge.
At the test area , Driver explained to Lewis that they were
there to allow Rodriquez to take a test to determine whether
his welding skill was sufficient to permit him to enter the
training program. A colloquy ensued between Lewis and
Driver, accompanied by some harsh words, concerning
Lewis' obligation to conduct the test. Lewis did, however,
begin the test and there was a further exchange between
Driver and Lewis in which the steward complained that the
test prepared for Rodriquez was too severe for a trainee.
Lewis nevertheless conducted the test and told Driver and
Rodriquez to return to the personnel department. The em-
ployees complied and were told that Rodriquez had passed
the test and would be assigned to the training program.
Before Driver left the personnel department he was called
into the office of Alvin Richardson, the Respondent's per-
sonnel administrator, who told Driver to stay out of the test
area.
On the following day, June 9, Driver was engaged in a
conversation with another employee just prior to the begin-
ning of work on the second shift . In the presence of other
employees in the immediate area, Lewis walked up and
accused Driver of telling other employees that he had forced
Lewis to pass Rodriquez in the test for the welders training
program. In the exchange of words which ensued, Lewis
threatened that if he heard about the matter again he would
kick Driver's "goddamn ass." Lewis also threatened that he
would take some additional action directed to Driver's pos-
terior on the next occasion he heard about Driver's brag.
J. E. Novak was present and intervened with the comment
directed to Driver: "Let me tell you what he is trying to say.
He says he means for you to shut up that smart talk and if
you come back over to that school any more for any reason,
he is going to kick your goddamn ass, and he means it and,
I am going to back him up."
After the above-described exchange, Driver suggested
that he, Lewis, and Novak go to the personnel department
to straighten the matter out. On arrival at the personnel
department, Driver asked Lewis to repeat his remarks to
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kendall Williams, and Lewis complied by stating that if
Driver came back to the school again for any reason he
would kick his goddamn ass . There was some further discus-
sion concerning Lewis, accusation that Driver had bragged
that he had forced Lewis to pass Rodriquez in the welding
test, which Driver apparently denied.
J. E. Lewis testified in this proceeding and related that
his comments directed to Driver were motivated by Driver's
comments to other employees that he had forced Lewis to
test Rodriquez in the manner prescribed by Driver. Lewis
also testified that his remarks to Driver were also prompted
by Driver's interference in the testing of Rodriquez, and
that he told Driver to stay out of the testing area.
It is the Respondent 's contention that neither Lewis nor
Novak is its agent within the meaning of Section 2(13) of
the Act. Alternatively, the Respondent contends that
Driver's conduct with respect to the welding test adminis-
tered to Rodriquez was outside the scope of his steward
duties and authority, that Driver had no business in the
testing area , and, accordingly, Driver's activities were out-
side the protection afforded by the Act. The Respondent
also contends , as related above , that the dispute concerning
Driver is cognizable under the grievance and arbitration
procedures specified in the collective -bargaining agreement,
and, accordingly , requests that the Board defer its jursidic-
tion over this proceeding in favor of the contractual forum.
I find merit in this latter contention, and for this reason I
also find it unnecessary to reach or decide the substantive
issues relating to the alleged acts of interference , restraint,
and coercion directed to employee Thomas Driver.
The collective-bargaining agreement in effect between
the Respondent and the Union contains a two-step griev-
ance procedure applicable to "complaints , disputes, or
grievances involving alleged violations of this Contract
.. " In the event the grievance is not disposed of under
the procedure provided for in the grievance machinery,
either the Respondent or the Union may, within 10 days of
the finalization of the proceedings involved in the second
step of the grievance procedure , give written notice of a
desire to submit the matter to binding arbitration . The arbi-
tration proceeding specified in the collective-bargaining
agreement provides for the selection of a neutral arbiter to
be selected by the representatives of the parties , or, if no
agreement is reached in this selection process , the arbiter is
to be selected by recourse to a striking process on a list of
five arbiters provided by the Federal Mediation and Concil-
iation Service.
On June 16, 1972, prior to the date the Union filed the
charge in this case , Thomas Driver filed a grievance with
respect to the threats uttered by Lewis and Novak on June
9. More particularly, Driver specified that the Company
had violated articles V and XXIX 3 of the collective-bar-
gaining agreement when Leadmen Lewis and Novak threat-
ened to do bodily harm to Driver if he came back into the
training school area for any reason.
Article V of the collective-bargaining agreement , relied
on by Driver in the grievance he filed on July 16, 1972,
provides in pertinent part as follows:
3 Art. XXIX of the bargaining agreement is entitled "No limit on Manage-
ment Functions" and is a form of "management prerogative" clause.
ARTICLE V
Discrimination and Union Activities
The Company agrees that it will not discriminate
against, interfere with, coerce or restrain employees in
any way, because of their membership in, or activities
on behalf of the Unions permitted by law and the
provisions of the agreement.
The Company will not in any way discriminate
against any employee or group of employees for pre-
senting any complaint, dispute or grievance to their
Foreman , Shop Steward , craft committeeman, or the
Personnel Director in the manner provided by this
agreement.
During the course of the hearing in this proceeding, the
General Counsel argued that deferral to the contractual
forum in this case is inappropriate because Section 10(c) of
the Act vests in the Board exclusive jurisdiction to prevent
unfair labor practices affecting commerce . This argument
has previously been advanced in other cases, and decided
by the Board contrary to the General Counsel's assertion.
As an example, in the National Radio case ,4 the Board held:
In sum , we conclude that the Board is empowered un-
der the statute to defer action on a complained of viola-
tion of Section 8(a)(1) and (3), pending arbitration, if,
on balance , to do so will advance the policies and pur-
poses of the Act.
In addition , in the legal memorandum submitted on the
issue of deferral , the General Counsel argues that the
threshold question presented in this case is whether Driver
was acting within the scope of his duties as a steward when
the threats were uttered , and, therefore , as the bargaining
agreement is silent on the duties of stewards , deferral is
inappropriate. I find no merit in this argument. The contract
is not silent on the duties of stewards , nor is it silent with
respect to the limitations imposed on their activities. Article
XXV of the agreement provides, in relevant part, that:
No person shall hold the office of shop steward un-
less he be an employee of the Company in the craft
which he represents.'
It may be, as the General Counsel argues, that in the past
Driver and other stewards have entertained and processed
grievances for employees in classifications or jobs outside
the immediate craft they have been appointed to represent.
If, however , such practices has been permitted to modify the
terms of the bargaining agreement , the arbiter would not be
precluded from considering such evidence in arriving at a
determination of whether Driver's activities in the Rodri-
quez incident were within the scope of his duties as a stew-
ard, and thus protected by the prohibition against
discrimination expressed in article V of the agreement.
The General Counsel also asserts that deferral is inappro-
priate in this case because the Board has not in any prior
case deferred the exercise of its jurisdiction where the com-
plained of conduct constituted an independent violation of
Section 8(a)(1) of the Act. In addition , the General Counsel
relies on certain language of the Board in Appalachian Power
4 National Radio Company, Inc, 198 NLRB No 1
' Emphasis supplied.
TODD SHIPYARDS CORPORATION
Company, 198 NLRB No. 7, to the effect that deferral is not
appropriate where the complained of conduct is ". . . so
inherently destructive of statutory rights as to amount, with-
out more, to a per se violation of Section 8(a)(1) and (3) of
the Act."
In my view, neither the absence of a specific precedential
case, nor the language relating to per se violations in Appa-
lachian Power, is any grounds for denial of the Respondent's
motion for deferral in this case. If the Board, as it has in
National Radio, supra, deferred to the contractual forum
where the complained of conduct was discrimination with
respect to an employee's terms and conditions of employ-
ment, a fortiori deferral is appropriate where the complained
of conduct is a threat to discriminate. Nor, in my view, is
the appropriateness of deferral here lessened by the fact that
the conduct complained of was a threat of physical abuse,
rather than discrimination, or a threat to discriminate by
discharge, layoff, transfer, or other forms of retribution af-
fecting terms and conditions of employment. As to the lan-
guage of Appalachian Power, I find that the General
Counsel's reliance on that case is misplaced. A threat of a
kick in the posterior, reprehensible as such conduct may be,
is not, in the circumstances of this case, so inherently de-
structive of statutory rights as to amount, without more, to
a per se violation of Section 8(a)(I) of the Act.
In summary, I find that deferral to the contractual forum
is warranted in this case under the precedent established by
the Board in Collyer, National Radio, and related case.6 The
issue here is whether Driver was threatened because he
engaged in protected concerted activities, or alternatively
whether the threat was uttered because Driver exceeded the
bounds of the contractual limitations on his authority as a
steward. Both issues are cognizable within the framework of
the grievance and arbitration provisions of the bargaining
agreement, and, if a contract violation is found, the conduct
is remediable by the contractual forum. The record reveals
a long and stable bargaining relationship between the Re-
spondent and the Union, and there is no evidence that on
any prior occasion the Respondent has engaged in like or
6 Collyer Insulated Wire Co, 192 NLRB 827
117
related conduct to subvert the Section 7 rights of its employ-
ees.
CONCLUSIONS OF LAW
1. The Respondent, Todd Shipyards Corporation, Hous-
ton Division, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union, International Brotherhood of Boilermak-
ers, Iron Ship Builders, Blacksmiths, Forgers and Helpers
Local Union No. 469, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The policies and purposes of the National Labor Rela-
tions Act, as amended, will best be effectuated by the dis-
missal of the complaint in this case, and deferral of the
issues raised by the pleadings to the grievance and arbitra-
tion procedures provided for in the collective-bargaining
agreement in effect between the Respondent and the Union.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER?
It is hereby recommended that the complaint herein be
dismissed, provided, however:
That the Board retain jurisdiction of the proceeding for
the purpose of entertaining an appropriate and timely mo-
tion for further consideration upon a proper showing that
either (a) the dispute has not, with reasonable promptness
after the issuance of this Decision, either been resolved by
amicable settlement in the grievance procedure, or submit-
ted promptly to arbitration, or (b) procedures have not been
fair and regular or have reached a result that is repugnant
to the Act.
7In 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