Versi Craft Corp.Download PDFNational Labor Relations Board - Board DecisionsJan 11, 1977227 N.L.R.B. 877 (N.L.R.B. 1977) Copy Citation VERSI CRAFT CORPORATION 877 Versi Craft Corporation and Clarence G. Lord. Case 23-CA-5131 January 11, 1977 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On June 30, 1976, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions, an answering brief, and brief in support of cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.1 The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 1 On December 16, 1975, Respondent's motion for summary judgment was denied . Verse Craft Corporation, 221 NLRB 1171. 2 Members Fanning and Jenkins agree with the Administrative Law Judge that the arbitral proceedings in the instant case were not fair and regular under Board 's standards set forth in Spielberg Manufacturing Company, 112 NLRB 1080 (1955). They would not in any event defer to arbitration in this proceeding for the reasons set forth in their dissent in Collyer Insulated Wire, a Gulf and Western Systems Co., 192 NLRB 837 (1971), and subsequent cases. Member Penello would find that the grievance proceedings were fair and regular, meeting the Spielberg standards, and would defer thereto for reasons stated in Electronic Reproduction Service Corporation, Madison Square Offset Company, Inc., and Xerographic Reproduction Center, Inc., 213 NLRB 758 (1974). DECISION STATEMENT OF THE CASE PAUL E. WEIL, Administrative Law Judge: On June 3, 1974, Clarence G. Lord filed with the Regional Director for Region 23 of the National Labor Relations Board, hereinaf- ter called the Board, a charge alleging that Versi Craft Corporation, hereinafter called Respondent, violated Sec- tion 8(a)(l) and (3) by terminating the employment of Lord because of his membership and activities on behalf of Painters' Local Union No. 130, hereinafter called the Union. On May 21, 1975, the Acting Regional Director, on behalf of the Board's General Counsel, filed a complaint and notice of hearing alleging that Respondent discharged Lord because of his union or concerted activities in violation of Section 8(aX3) and (1) of the Act. On May 29, 1975, Respondent answered the complaint admitting the jurisdictional allegations thereof, denying the commission of any unfair labor practice and raising as an affirmative defense an averment that all issues raised by the complaint were previously deferred to the arbitral process pursuant to the Collyer doctrine and that the results of such arbitral process should be honored. On July 17, Respondent filed a motion for summary judgment and a brief in support thereof together with a request to reschedule the hearing which was granted on the same day. On August 6, the Board issued their Order transferring the proceeding to the Board and a notice to show cause which was responded to by the General Counsel and Respondent. On December 16, 1975, the Board issued its Order denying the Respondent's motion for summary judgment' and on December 23, an order was issued by the Acting Regional Director resched- uling the hearing to April 5, 1976, in Houston, Texas. On that date the hearing was opened before me at Houston, Texas. All parties were present and represented by counsel and had an opportunity to call and examine witnesses and to offer relevant and material evidence. The hearing was closed on April 6, 1976, and reopened pursuant to order of the Board on May 3, 1976, at which time all parties were again present and had an opportunity to call and examine witnesses and adduced relevant and material evidence. The hearing was again closed on May 3, 1976. Thereafter, briefs were filed by the General Counsel and by Respondent. Upon the entire record in this case and in consideration of the briefs, I make the following: FINDINGS OF -FACT 1. THE BUSINESS OF RESPONDENT Respondent is a corporation doing business in Houston, Texas, as a building and construction contractor remodel- ing commercial establishments. Respondent annually pur- chases and receives goods in excess of $50,000, directly from points located outside the State of Texas. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1 221 NLRB 190. 227 NLRB No. 129 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED - B. The Brief Employment of Clarence G. Lord When the Charging Party arrived at the job, a floor of the Shamrock Hilton Hotel in Houston, Texas, he reported to the foreman and was put to work to prepare baseboards and doors in the corridor for painting and to paint them. During the course of that day, Thursday, May 16, Lord inquired of his foreman what work was to be done at the Shamrock Hilton and was told that they had four floors to refurbish and that the work consisted of painting, decorat- ing, - and hanging wallcovermgs. According to Lord's testimony, he commented that that was good and that he preferred to hang wallcoverings. That night, at the close of business, Lord changed his clothes on the premises and noted that of the half dozen employees represented by the Union only two changed their clothes on the premises; the rest leaving in their working clothes, a practice forbidden by the Union's bylaws. On the night of May 16, or the following morning, Lord consulted with his brother,. Percy Lord, the No. 2 Business Agent, and asked him who the shop steward was on the job. Percy Lord went into the back room of the union hall and returned and said that there was no record of a shop steward and asked his brother if he would like to be the shop steward. Lord agreed to this, whereupon Percy Lord typed up a letter stating in effect that he had appointed Clarence Lord as shop steward for the employees covered by the Union's contract. He gave a copy of this letter to Clarence Lord. The following morning when he arrived at work the Charging Party told his foreman that he had been appointed steward and that he would have to ask the men not to wear their working clothes away from the jobsite but to change at the job, as required in the bylaws. Apparently he also spoke to some of his fellow employees to the same effect. That evening, Friday, May 17, as he was about to leave the job, the Charging Party was handed a slip ordering him to report to another job at the Bank of the South West. On Monday morning, May 20, Lord reported at the Bank of the South West, at the normal starting hour, to the foreman, French, and continued working there until Thursday, May 23. - On Wednesday, May 22, the Charging Party prepared a weekly steward's report and got each of the union members on the job to sign it. He also informed the union members that they were to change their clothes on the job and not wear their dirty painting uniforms home. On Thursday, May 23, Lord was transferred by Lucas to another job at a ladies wear shop called "The Gap" at a shopping mall near Houston. When he arrived there was no foreman on the job, but about 8:10 another employee, Tumlinson, arrived and stated that he had just been informed that the Charging Party had been transferred to that job and that he didn't have very much to do. He gave the Charging Party instru ctions to paint two booths that had been erected in the store. Later that day, about 3 p.m., Charles Lucas arrived at the store and discharged the Charging Party. The termination interview presents one of the few factual issues in this case. According to the testimony of the Charging Party, Lucas came to him and called him to a place in back of the building where they could not be The Union, the International Brotherhood of Painters and Allied Trades, Local Union No. 130, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent is a general contractor operating mostly in the remodeling field and employing 100 to 200 employees. Respondent is split into four divisions, the carpenter division, a millwork division, a wrecking and delivery division , and a painting and wallcovering division, with which we are here concerned. Employees of the various divisions are all represented by the construction trade unions which normally represent employees doing the specific type of work. In the painting and, wallcovering division the employees are represented by the Union. At the time of the occurrences herein the Respondent and the Union were operating under an amended contract between the Houston Chapter, Painting and Decorating Contractors of America, Houston, Texas, and the Union pursuant to which the Employer has the right to call the Union's hiring hall for applicants, either by name or by job specialty and the Union is committed to maintain a register of applicants for employment, the particulars of which are not material to any issue herein. The contract also contains explicit provisions for the handling of grievances filed by individuals or by a party to the contract, provides for the creation of a joint trade board comprised of three members of the Employer and three members of the Union, with a special provision for handling of grievances by two mem- bers each of the trade board. In the event the joint trade board is unable to resolve the dispute, at the request of either party the dispute may be appealed to the state joint trade board. In the event the state joint trade board-fails to reach a decision promptly, an appeal may be made to a national joint trade board whose decision is final and binding.. The Union's territorial jurisdiction includes 21 counties and part of another in and around Houston, Texas. The Union, at the time of the occurrences herein had a "No. 1 business agent," E. L. Brimberry; a "No. 2 business agent," Percy Lord, the brother of the Charging Party and at least one other business agent. On May 15, 1974, Charles Lucas, Respondent's superin- tendent, called the Union's hall for two employees to work 2 or 3 days. He spoke to Business Agent Percy Lord. The following day Percy Lord dispatched his brother, the Charging Party, and another man named Carrizal. On Thursday, May 23, the Charging Party was discharged at the close of the day's business under circumstances which will be set forth below. General Counsel contends that this discharge violates Section 8(a)(3) and (1) of the Act. Respondent contends that it does not and that in any event the issue was thoroughly aired through the grievance procedure of the Union and the Employer, and that the Board should defer under the Collyer doctrine to the fmdmg of the national joint board. VERSI CRAFT CORPORATION overheard by any of the customers. Lucas asked Lord if he had talked to his brother. Lord said that he had done so, whereupon Lucas answered that then Lord knew what this was all about. Lord said that he didn't know what Lucas was talking about, and Lucas answered that the Company had been operating for 8 years without any union trouble. Lord interrupted Lucas, stating that if Lucas was referring to what Lord had said about the men changing their clothes, he should forget it, because it was strictly umon business. Lucas answered that he knew it was a small thing, but that the men had come to him about it and if they let it go it was something that would snowball; first it would be this , later it would be something else, and it would be completely out of hand. Lord answered that he had no intention of causing the Company any trouble and had not done so, that the business of changing uniforms is strictly union business and the Company should not be concerned. Lucas answered that Percy Lord had called his boss and "blessed him out," and that Percy Lord had told Lucas' boss not to send "that hippy" back to the umon hall to talk to him any more. Lord said in effect that he could see that he was fired and told Lucas to give him his check, after offering to finish the work before he left; Lucas said that he would have Turnhnson finish the work. Lord assured Lucas that he carried no hard feelings but that he didn't think that Respondent had done him right and he wanted to have the thing straightened out. He ended by asking if there was anything wrong with his work, to which Lucas replied that Lord was a good mechanic. According to Lucas' story, he called the Charging Party to the back of the store and explained that the Company was getting caught up and that he'd kept Lord working as long as he could but he had no place to put him. At this point the Charging Party interrupted him and said that he knew why he was being discharged, it was because he was trying to enforce the changing-of-clothes bylaws. Lucas answered that he couldn't care less about changing clothes and Lord answered that Lucas was involving the Company in something that didn't concern them, to which Lucas agreed. Then Lord asked if Lucas knew what the bylaws said about discharging a shop steward and Lucas said he didn't know. Lord said that Lucas had better check with his boss . Lucas answered that he had talked with Percy Lord, who had told him that he had appointed the Charging Party as shop steward and threatened Respondent with trouble if the Charging Party was laid off. Lucas said further that Percy Lord had called Lucas' boss and told him that he would put him out of business if he laid off the Charging Party. Lord answered that there are going to be complica- tions if Respondent let him go, and asked for his check. When Lord had his check he said that he would carry this matter all of the way. He would take it to the union hall and he needed a few days off with pay, anyway. To this Lucas answered that he didn't know if they would have to pay Lord because they didn't recognize him as shop steward. Lucas agreed that he had been asked if Lord's work was all right and said that it was. Lucas specifically denied making any comment about this being a small matter but that it could snowball or get out of hand. Finally Lucas testified that the only reason for laying off Lord was that he had no work for him to do C. Discussion and Conclusions 879 The General Counsel's case-in-chief presents a reason- able picture of a violation, if viewed without the interposi- tion of contrary or additional evidence. Thus, the Charging Party was dispatched to a job which appeared to be a long- term job, immediately discovering conditions on the job contrary to the bylaws. He was given the authority to rectify the conditions. As soon as he reported to his Employer that he had been appointed shop steward and attempted to rectify the conditions, he was transferred to another job. When he busied himself on the second job, rectifying the same conditions which were unlawful under the bylaws, he was transferred to a third job and then laid off. This, in spite of the Respondent's testimony that Lord was laid off for lack of work, adequately supports the inference that the layoff was in fact given him because he was "rocking the boat" by requiring his fellow employees to change their clothes at the jobsite rather than at home as they preferred. Respondent's case-in-chief, however, raises additional facts which stand uncontradicted on the record. The first of these is that Respondent already had a shop steward who had been appointed years before; accordingly, the Charg- ing Party's appointment as shop steward, without steps being taken to remove the existing shop steward, put Respondent in the position of having two competing shop stewards. Another factor not revealed in the General Counsel's case-in-chief is the hiring practice of Respondent, which has a regular corps of painters who have been with it over a period of years and are laid off and recalled without going through the Union. This is apparently known to the Union and no issue is raised by the Union to Respondent with regard thereto. There is no record, or at least none was adduced by the General Counsel, that any employees other than this corps of regular employees were hired by Respondent through the Union at any time after the Charging Party was dispatched to Respondent through the month of May, and it is uncontroverted that Respondent in fact laid off two other employees later in the month of May after the layoff of the Charging Party. It is also undisputed that the Charging Party was dispatched in response to a request for the assignment of two men for 2 or 3 days' work. He worked 6 days before he was laid off. The testimony adduced by Respondent reveals that the job occupied by the Charging Party on the day he was discharged was almost completed. When he left the Bank of the Southwest job it was petering out and the painting and wallhanging portion of the job at the Sham- rock Hilton did not start until 5 or 6 days after his discharge. The testimony at the hearing, together with a close perusal of the minutes and factual submission of the parties throughout the trial stage of the grievance procedure reveal additional factors that deserve to be considered. It is clear that an intense "power struggle" was taking place between Percy Lord, the No. 2 Business Agent and E. L. Brimberry, the No . I Business Agent; Percy Lord appointed his brother shop steward. Brimberry had appointed another man shop steward some years before. When the instant matter was taken up to the grievance procedure Percy Lord 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented his brother at the trial stages and Brimberry appeared as witness for Respondent. When Lucas found himself with two stewards he called the union hall and talked to Brimberry who suggested he come to the union hall and talk it over with Brimberry and Percy Lord.- He went to the hall on Wednesday, May 22, where he met with Brimberry and Lord. Brimberry ex- plained to Lord that he had appointed a shop steward in the past . Lord answered that he had checked the records and there was nothing on file stating that Darrel Hardy was the steward for Versi Craft. Brimberry explained that Hardy had been appointed prior to 1972. Lord then said that he had made his decision and that was final. Brimberry said he was the No. 1 Business Agent and had the authority to tell the other Business Agents what to do. Lord disagreed with him. Brimberry and Lucas suggested making the Charging Party job steward and Lord would not hear of it, stating that if they made him job steward, as soon as the job was over, they would fire him, and that ruled out that sugges- tion. Brimberry told Lord that Lord had no authority to do this and Lord repeated that he had made his decision and that was final and then told Lucas that if he tried to lay his brother off that he would have more [trouble]2 in his shop than he could handle. With this testimony of Lucas, which was not challenged by the General Counsel, the inference that the Charging Party had been laid off because of his attempt to enforce the Union's bylaws becomes weaker, in my opinion, than the evidence that Lord was laid off because his j ob ran out; he had been appointed only for a 2-or 3-day job and when the job ran out, was not retained. The attempted appoint- ment of the Charging Party by his brother as job steward, which gives rise to an inference that it was made only to give the Charging Party superseniority in Respondent's employ, was shown to be ineffectual and Respondent let the Charging Party go in the normal course of its business, although Lucas realized that Respondent was caught in the middle in the struggle between the two competing business agents and trouble would probably ensue no matter what course of action he took. Inasmuch as the inference upon which the General Counsel's theory ultimately depends is rejected, I find that the General Counsel has not sustained his burden of proving a violation of Section 8(a)(3) stemming from the Charging Party's discharge, and accordingly, I shall recom- mend that the case be dismissed in its entirety. D. The Collyer Issue Respondent contends on the threshold of this case that the Board should not take jurisdiction because it has been decided adversely to the Charging Party by the machinery set up by the Union and the Employer. The General Counsel contends, however, that the Charging Party, having been denied an opportunity to cross-examine Brimberry, who was called as a witness by Respondent, and having been faced with the acceptance as evidence of an unworn statement of 15 employees who were not called to testify in the arbitration proceeding, had his case heard in an unfair and irregular proceeding because of the "inade- quate provisions for the taking of testimony." 3 The documents submitted by stipulation concerning the arbitration issue reveal that Lord in his grievance originally complained of being unjustly discharged for union activi- ties . The matter came on before a four-manjoint board who failed to resolve after a tie vote. Thereupon it was taken up by a six-man joint board who failed to resolve it because of a tie vote. Evidence was taken before the four-man joint board at which time Lord admittedly had an opportunity to cross-examine Respondent's witnesses with the exception of Brimberry who did not appear. Thereafter, the matter went to the state joint board in Austin, Texas. On being informed of this fact the Charging Party addressed himself to the secretary of the state joint board asking whether he should appear to testify and was told that the joint board had all the evidence on which they were to act except a copy of a letter addressed to Brimberry from the International President and that there was no point in his coming to Austin. Accordingly, neither he nor any representative of Respondent attended the joint board session in Austin. At this session, however, Brimberry was called as a witness and testified that he had appointed another shop steward prior to the appointment of Lord, the Charging Party. In addition Brimberry apparently supplied a document which had been prepared by Lucas and signed at Lucas' request by each of his painter employees that stated that Darrel Hardy had been the shop steward for several years. None of the employees were called to support the statement which was received by the state trial board. The state trial board again failed to resolve the issue because of a tie vote and the matter was appealed by the Charging Party to the national joint trade board and considered on November 19, 1974. The decision of the nationaljoint trade board, in pertinent part, states: The evidence before the National Joint Trade Board at its meeting held on November 19, 1974, indicates that Mr. Brimberry, number one business representative of Painters Local Union No. 130, had appointed a Mr. Darrell Hardy as shop steward of Versi Craft Corpora- tion several years ago. Mr. Brimberry and 15 employees of the Versi Craft Corporation, members of Painters Local Union No. 130, so testified, and the'fact results are verified by the employer. The evidence indicates that Mr. Hardy had never been removed from this position, the evidence also indicates that subsequently Mr. Lord was erroneously appointed by another busi- ness representative of of Painters Local Union No. 130 to the same position. The Local agreement does not restrict the employer from laying off employees for any reason other than the shop steward. In this case it is the opinion of the National Joint Trade Board of the Painting Industry that Mr. Lord was not the steward. Therefore the Versi Craft Corporation of Houston, Texas, had the right to assume that it was not laying off a shop steward, but rather a regular employee. 2 Expletive deleted. 3 Gateway Transportation Co., 137 NLRB 1763 (1962). VERSI CRAFT CORPORATION 881 Since Mr. Hardy is determined to be the official steward, it is the finding of the National Joint Trade Board .that Versi Craft Corporation did not violate Section 14, Section 9-B (Steward Clause) of the Hou- ston Labor Agreement when it discharged Clarence G. Lord. Therefore the National Joint Trade Board does not agree with the position of Clarence G. Lord and fmds in favor of the Versi Craft Corporation of Houston, Texas. It is clear from the above-quoted fording that no part of the decision of the national joint trade board, the only decision material hereto, deals with the Charging Party's claim that he was discharged because of his union activities. On the contrary, it deals solely with the contention apparently raised during the proceeding that he was the shop steward and as such could not be laid off as long as there was work. The decision of the national joint board is predicated completely on the testimony of Brimberry and the alleged testimony of the 15 employees and the Employer. Brimber- ry's testimony was given at the Austin meeting of the state joint board concerning which the Charging Party was advised not to attend, thus rendering it impossible for him to cross-examine Brimberry. The 15 employees were never 4 Spielberg Manufacturing Company, 112 NLRB 1080 (1955). 5 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 called to testify. It would appear from the evidence adduced before me that during the testimony of witnesses in proceedings such as these before the local joint board, normally occasion is given to the parties to cross-examine each other. Thus apparently in this case the Union and the Respondent through the joint board denied the Charging Party their normal due process. But, even if this were the norm, deprival of due process by the failure to permit or provide for cross-examination on the basic issue on which the case was decided by the national joint board renders the arbitral proceedings unfair and irregular under the so- called Spielberg doctrine.4 This, together with the apparent failure of the national joint board to consider the unfair practice issue raised before it by the Charging Party, renders it inequitable to give effect to the national joint board's award as it would deny the Charging Party a hearing on the issue of his alleged discriminatory discharge. ORDER I find that the General Counsel has not established by a preponderance of the evidence that the discharge of Charging Party was in violation of Section 8(a)(3) and (1) of the Act. Accordingly, I recommend that the complaint be dismissed in its entirety .5 of the Rules and -Regulations, be adopted by the Board and become its fmdmgs, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. Copy with citationCopy as parenthetical citation