NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,519, DERR AND GRUENEWALD CONSTRUCTION CO. and DAVID NEWELL and RICKY G. BRYANT and DOUGLAS CALKINS., (Sep. 30, 1994), National Labor Relations Board, (Sep 30, 1994)

DERR AND GRUENEWALD CONSTRUCTION CO. and DAVID NEWELL and RICKY G. BRYANT and DOUGLAS CALKINS.

315 NLRB No. 36.Case Nos. 27-CA-12065, -12065-2 and -12065-3. September 30, 1994 Clifford H. Anderson, Administrative Law Judge..

Before Gould, Stephens and Devaney.

Michael Patton, for General Counsel. Robert R. Miller (Stettner, Miller & Cohn), Denver, Colorado, for Respondent. Douglas Calkins, Brighton, Colorado, pro se.

Deferral to Arbitration--Bargaining Issues--ULP Issues.--The NLRB deferred an unfair labor practice charge to the decision of a board of adjustment, which ruled that an employer’s list of employees that it deemed ineligible for hire was improper and that three persons referred by a local union were to be paid by the employer. The employer had invoked a provision in a collective bargaining agreement between the parties that reserved to the employer the sole right to determine an applicant’s qualifications for employment, and the union filed an unfair labor charge challenging the employer’s hiring decisions. However, the NLRB ruled that, although the arbitration award lacked an express rationale, deferral to the board of adjustment was appropriate because the contractual issue was factually parallel to the unfair labor practice charge, and the arbitrators were presented generally with the facts relevant to resolving the unfair labor practice charge. Section 10(c).

Back reference: ¶5515.348.

From Text of Board’s Decision

The dispute in this case originated on February 3, 1992, [1] when the Respondent refused to hire employees Casey Hall and Matthew (Mac) McDonald, who had been dispatched to the Respondent by the Union. [2] On that day, the Respondent transmitted to the Union a letter identifying eight employees, including Hall and McDonald and the Charging Parties, whom it deemed ineligible for hire. Previously, on January 21, all eight employees named in the letter had participated to varying degrees in a demonstration to protest unsafe conditions and other related activities following a crane accident the day before at the Respondent’s jobsite at Denver International Airport (DIA). In formulating the letter, the Respondent invoked article I of the applicable collective-bargaining agreement which reserves solely to employers the determination of an applicant’s qualifications for employment. [3] The letter did not specify why the Respondent deemed the eight men unqualified.

On February 6, the same day that Douglas Calkins was dispatched to the Respondent and rejected for employment, the eight employees who were designated by the Respondent as ineligible for hire, delivered a letter to Union Business Manager Howard Rathe, signed by all of them, that requested the Union to file a grievance. The letter stated in pertinent part:

Derr & Gruenewald’s interpretation of the terms of the [collective-bargaining agreement] and application of, [sic] is out of context with Purpose of Agreement. By refusing to hire the Local #24 members listed in the 2-3-92 declaration [the eight employees] because of their local union membership, union activity, or other [S]ec. 7 N.L.R.A. protected group activity.

On February 7, 1991, Rathe filed a formal grievance, with the Respondent’s and the employees’ letters attached. The grievance summarized Rathe’s efforts to resolve the dispute, explained that the Respondent had agreed to delete two names on the list, but refused to dissolve the list as a whole. [4] Neither the grievance nor the employees’ letter specifically mentioned the employees’ underlying involvement in the safety protest.

In early March, a hearing on the grievance was held before the board of adjustment. Rathe elicited testimony from the affected employees about their qualifications and work record. Rather than cross-examine the employees or present evidence in support of its position, the Respondent elected to rely on its interpretation of the language in article I of the collective-bargaining agreement. No evidence was presented about the employees’ involvement in postaccident activities. On March 6, the board of adjustment issued a decision in the matter which stated, without elaboration that:

1) The “List” of February 3, 1992 by Derr & Gruenewald is dissolved and retracted.

2) The three (3) persons referred by the Local Union, to wit, Mac McDonald, Casey Hall and Doug Caulkings [sic], are to be paid by Derr & Gruenewald Construction Co. four (4) hours minimum working time at the applicable wage and benefit rate.

Discussion

As the judge noted, the Board will defer to an arbitration award when the arbitration proceedings are fair and regular, all parties agree to be bound, and the decision is not repugnant to the Act. [5] Spielberg Mfg. Co., supra. An additional condition for deferral is that the arbitral forum must have considered the unfair labor practice issue. Raytheon Co., supra. The Board deems the unfair labor practice issue to have been adequately considered if (1) the contractual issue is factually parallel to the unfair labor practice, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice. Olin Corp., [1983-84 CCH NLRB ¶16,028] 268 NLRB 573 (1984). [6]

On the basis of the foregoing, we agree with the judge that the board of adjustment (the panel) considered the unfair labor practice issue, notwithstanding that evidence concerning the employees’ postaccident activities was not presented to it, and that the award lacks an express rational. Article I of the collective-bargaining agreement expressly, and unambiguously, gives employers unilateral authority to determine whether applicants (i.e., hiring hall referents) are qualified for employment. That authority, however, is limited by the further provision which expressly, and unambiguously, prohibits an employer deeming an applicant unqualified because of his union membership or nonmembership (including, as the judge found, union activity), and certain other specific reasons. See footnote 5, above. Here, the employees’ February 6 letter, which was submitted to the arbitral forum as an attachment to the Union’s grievance--indeed it formed the crux of the grievance--specifically questions the Respondent’s application of article I and avers, as the only ground for the Respondent’s action under the contract, that the employees were declared ineligible for employment because of their Section 7 “group” activity or other union activity--the very allegations contained in the instant unfair labor practice complaint.

Because the contractual violation alleged by the grievance (as elucidated by the attachment of the employees’ February 6 letter) was limited to a claim that the Respondent had discriminated against the grievants on the basis of union and group activity that is squarely protected by Section 7 of the Act and discrimination which is squarely prohibited by Section 8(a)(1) and (3), the panel--if it upheld the grievance--could not decide the contractual issue without deciding the unfair labor practice issue as well. Put another way, given the limited constraints imposed by article I of the contract on an employer’s authority to refuse to accept referred employees for hire and the fact that the only one of those constraints invoked by the grievance coincided with prohibition of the Act, the only possible basis for the panel’s ruling against the Respondent was discrimination of the kind alleged by the General Counsel in this case. The failure of the Union to present the arbitral panel with evidence of the “union activity or other [S]ec. 7 N.L.R.A. protected group activity” alluded to in the grievance does not foreclose this conclusion. In view of the uncontradicted and objective evidence of the employees’ experience and qualifications which the Union presented to it, the panel must have concluded that the Respondent could have deemed the employees unqualified only if it was motivated by the reasons complained of in their letter attachment to the grievance--i.e., their Section 7 activity or other union activity. Because these are the elements required to prove the allegations in the complaint, we are left with the inescapable conclusion that the panel considered the essential unfair labor practice issued even though details of the employees’ protected activity were not specifically presented to it. [7]

Accordingly, we find that deferral to the arbitral award in the instant matter is appropriate.