Versi Craft Corp.

National Labor Relations Board - Board Decisions

Jan 11, 1977

227 N.L.R.B. 877 (N.L.R.B. 1977)

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.