Central Excavating Co.

National Labor Relations Board - Board DecisionsAug 31, 1976

225 N.L.R.B. 1106 (N.L.R.B. 1976)

1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pete Salemi d/b/a Central Excavating Co. and Robert E. Camilletti . Case 8-CA-9448 August 31, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On April 8, 1976, Administrative Law Judge Ben- jamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs and Respondent filed an answering 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge ordered the com- plaint dismissed finding, contrary to the positions of the General Counsel and the Charging Party, that the issues underlying the complaint should be deferred to the parties' grievance-arbitration procedure. How- ever, in its exceptions to the Administrative Law Judge's Decision, Respondent withdrew its deferral defense, and its present position before the Board is that it no longer is willing to proceed to arbitration. As noted above, the General Counsel and the Charg- ing Party likewise are opposed to such deferral. In these circumstances, where none of the parties are willing to submit the issues herein to arbitration, we find that deferral to arbitration is not warranted and, thus, the merits must be reached. In this regard, the Administrative Law Judge, de- spite his decision to defer to the parties' arbitration procedure, in the alternative "set forth briefly" what his findings as to the credibility of witnesses and the facts of the instant case would be, and the findings and conclusions he would draw therefrom. Upon re- view of the record, we find that the Administrative Law Judge's tentative decision on the merits is inade- quate for the purpose of enabling us to reach an in- formed decision herein. It fails to deal fully with the allegations in the complaint or the facts contained in the record, and is, therefore, deficient. For example, evidence which appears to be relevant to a mean- ingful analysis of the issues raised in the complaint, including credibility, is not mentioned or discussed, mand this proceeding to the Administrative Law Judge for a full and complete explication of the basis for his findings and conclusions concerning the mer- its of this case, and any recommended order he may propose. ORDER It is hereby ordered that this proceeding be, and it hereby is, remanded to Administrative Law Judge Benjamin K. Blackburn for such further action as is required in light of our decision not to defer the is- sues raised including the issuance of a full decision on the merits of the complaint. DECISION FINDINGS AND CONCLUSIONS Collyer BENJAMIN K. BLACKBURN , Administrative Law Judge: The principal issue litigated at the hearing in this case in Cleve- land, Ohio, on February 5 and 18, 1976 , was whether the National Labor Relations Board should defer to arbitra- tion under the doctrine it set forth in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971), and subsequent decisions interpreting and refining Collyer. (The charge was filed on September 11, 1975.1 The complaint was issued on October 24.) As sole proprietor of Central Excavating Co., Pete Sale- mi has a long and peaceful relationship with Local 18 of the International Union of Operating Engineers as well as other labor organizations. The current contract between Respondent and Local 18 contains a four-step grievance and arbitration procedure . Step 1 calls for a meeting be- tween Local 18's district business representative and Respondent's representative . If they cannot "settle the matter," step 2 provides for a committee of two, one ap- pointed by Local 18 and the other by The Labor Relations Division of the Ohio Contractors Association . If they can- not agree , the dispute goes to step 3 where the committee consists of six members appointed , three from each side, in the same manner as in step 2. "If no settlement is reached at step 3, then Step 4 : The grievance shall then be referred to an Ar- bitrator selected by the Committee referred to in step 3. If no agreement is reached by the State Joint Committee on the naming of an Arbitrator , then the rules of the American Arbitration Association for selecting an Arbitrator shall apply. Decision of the Arbitrator shall be final and binding on all parties. Robert Camilletti is a member in good standing of Local 18. In a nutshell , this case grows out of the fact that Camil- letti ceased working for Respondent on Wednesday, July 30, after successfully invoking Local 18's aid in getting Re- or is too cursorily handled. Accordingly, we shall re- ' Dates are 1975 unless otherwise specified 225 NLRB No. 167 CENTRAL EXCAVATING CO 1107 spondent to pay him for 8 hours' work he did not perform on Saturday July 26. (Camilletti's claim grew out of the fact that another man operated the bulldozer to which Camilletti was normally assigned for an hour on a day when Camilletti was not scheduled to work.) Whether Camilletti' s loss of his job was proper or im- proper is a dispute which the contract between Respondent and Local 18 expressly provides shall be resolved through the grievance and arbitration procedure. Unfortunately, no one invoked it until February 3, 1976, when Salemi 's attor- ney sent a letter to that effect to Local 18. (Salemi did not retain counsel until after the Regional Office had complet- ed its investigation and the complaint had issued. The orig- inal answer to the complaint was a letter on Central Exca- vating Co. stationery dated November 7 and signed by Salemi. Counsel acted promptly to file an amended answer and invoke the grievance and arbitration procedure once Salemi retained him.) Respondent is willing to carry the dispute all the way through arbitration if it cannot be re- solved to Camilletti's satisfaction in the grievance steps which come first. Local 18 is also willing to embark on the grievance and arbitration route. Thus, both parties to the contract have waived any procedural roadblocks which failure to invoke grievance and arbitration more promptly may have created. There is no objective basis for Camilletti's expressed fear that he will not get a fair hear- ing before an arbitrator because "they" do not like him at the Uniou. In fact, the only objective conclusion which the record supports is to the contrary. Camilletti's most recent experience with the grievance and arbitration procedure had been a happy one. Respondent paid him the money he claimed for July 26 as the result of a telephone call from Local 18 pursuant, albeit informally, to step 1. Camilletti's fear is similar to the reluctance of Local 18's spokesman to commit Local 18 to go to arbitration before he had a chance to investigate the merits of Camilletti's position in the preliminary grievance steps Only by giving the griev- ance and arbitration procedure an opportunity to function can it now be determined whether Camilletti can get his case before an arbitrator and, once there, whether the treatment he receives measures up to the standard which the Board insists on before it defers. If, in the event, it turns out that Camilletti does not get a fair shake, the Board's customary retention of jurisdiction in Collyer situ- ations will protect him since he need only bring that event to the Board's attention to have it reopen this case. The General Counsel's principal argument why this is not a proper case for application of the Collyer doctrine grows out of the line of cases beginning with Joseph T Ryerson & Sons, Inc., 199 NLRB 461 (1972), where the Board said: [T]he violation with which this Respondent is charged, if committed, strikes at the foundation of that griev- ance and arbitration mechanism upon which we have relied in the formulation of our Collyer doctrine If we are to foster the national policy favoring collective bargaining and arbitration as a primary arena for the resolution of industrial disputes, as we sought to do in Collyer, by declining to intervene in disputes best set- tled elsewhere, we must assure ourselves that those al- ternative procedures are not only "fair and regular" but that they are or were open, in fact, for use by the disputants. These considerations caution against our abstention on a claim that a respondent has sought, by prohibited means, to inhibit or preclude access to the grievance procedures. It is this consideration which persuades us that the issues of arbitrability and con- tract coverage, discussed above, should not here be left to resolution by the arbitrator as might be appro- priate under other circumstances. [Fn. omitted.] In North Shore Publishing Co, 206 NLRB 42 (1973), the Board said: In the instant case the complaint contains a specific allegation that Kabitzke was discharged for invoking the very grievance procedure to which Respondent would have us defer. We cannot entrust such a com- plaint to a procedure the integrity of which is directly challenged by the allegations of the complaint itself. For the reaaons set forth in Ryerson, therefore, we do not believe this to be an appropriate case for deferral under Collyer. [Fn. omitted.] Here, the complaint reads, in pertinent part: 6(B) Respondent did discharge and terminate the em- ployment of the Charging Party, and has failed and refused, and continues to fail to refuse, to reinstate him for the reason that the Charging Party had, or Re- spondent believed he had, joined, assisted, favored or be- come a member of the Union, by engaging in union activ- ities, including, but not limited to, voicing complaints about Respondent to the Union, and/or filing griev- ances against Respondent and/or by other means pur- suing benefits to which he was entitled under the cur- rent collective bargaining agreement between the Respondent and the Union, and/or because he had engaged in other protected concerted activities for the purposes of collective bargaining or other mutual aid or protection. [Emphasis supplied.] Other than a superficial similarity in pleading, North Shore and this case have nothing in common. In North Shore the issue was whether Kabitzke was discharged for filing and pursuing a grievance, as the charging party union contended, or for work derelictions, as the company contended The grievance procedure had been invoked and found wanting. Here, the grievance procedure has not been tested yet with respect to Camilletti's discharge. Where it was once tested in the course of Camilletti's confrontation with Respondent, it worked like a charm. Other Ryerson cases cited by the General Counsel are inopposite for the same reason. In Diversified Industries, a Division of Indepen- dent Stave Company, 208 NLRB 233 (1974), as in Ryerson itself, the company demonstrated by its conduct during the processing of grievances that it wanted to bar access to the procedure. In Whirlpool Corporation, Evansville Division, 216 NLRB 183 (1975), the union which was a party to the contract had abandoned the charging party's grievance "and there is no compelling incentive for the union to re- scind its abandonment." In The Anthony Company, d/b/a El Dorado Club, 220 NLRB 886 (1975), the charging parties were discriminated against because they participated in a 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior arbitration hearing. Since the grievance and arbitra- tion procedure had failed already, the Board refused to engage in an obviously futile act. In the language of Ryer- son, this is not a case where "a respondent has sought, by prohibited means, to inhibit or preclude access to the griev- ance procedures." Therefore, the General Counsel's weightiest argument is without merit. Two others are also bad. Respondent has invoked Collyer in timely fashion. James W. Whitfield, d/b/a Cutter Supermarket, 220 NLRB 507 (1975). Kansas Meat Packers, a Division of Aristo Foods, Inc, 198 NLRB 543 (1972); The Seng Company, 205 NLRB 200 (1973), and United States Postal Service, 215 NLRB 488 (1974), do not stand for the proposition that a grievance and arbitration procedure must, by its terms, give the em- ployee a right to carry his grievance to arbitration before a deferral is appropriate. The record contains Respondent's assertion that it is willing to carry the grievance it filed on February 3, 1976, all the way to arbitration. (I do not un- derstand the assertion in the General Counsel's brief that "[t]here is no showing that Respondent is willing to submit all aspects of the underlying charge to arbitration.") Local 18 took the same position, subject only to its right to inves- tigate the merits of Camilletti's case first. If it investigates and refuses even to process the grievance, Ryerson obvious- ly applies and Camilletti need only file the appropriate mo- tion to revive this case. I find, therefore that the Collyer doctrine precludes a determination at this time as to whether Respondent has violated the National Labor Rela- tions Act, as amended. The Merits Having found this a case appropriate for application of the Collyer doctrine, I do not reach the merits of the dis- pute. This places me on the horns of a dilemma. The de- tailed, almost line-by-line analysis of the record which would normally be called for would thwart the Board's purpose in developing the doctrine, that is, husbanding its resources in order to permit it to cope with an ever-expand- ing caseload which threatens to outstrip the tools it is given to carry out its mission. However, reversal is an ever-pres- ent possibility. In that event, remand would run afoul of the other goal to which the Board must devote its energies if it is to effectuate the policies of the Act, that is, a mini- mum lapse of time between filing of the charge which initi- ates a case and issuance of the decision which ends it. In the hope of avoiding the latter pitfall, I set forth briefly my findings and conclusions as to the issues other than Collyer posed in this record. Diversified Industries, a Division of In- dependent Stave Company, supra. The first is credibility. As to the numerous head-to-head conflicts between the testimony of Camilletti, the General Counsel's sole witness as to the merits, on the one hand and Respondent's witnesses on the other, I credit the latter. From this it follows that the General Counsel has failed to prove the single independent 8(a)(1) allegation in the com- plaint, namely, that Salemi unlawfully interrogated Camil- letti on July 31 "regarding why [he] had on July 28, 1975, gone to the Union hall to voice a complaint against Re- spondent." It does not follow from this, however, that I found all Respondent's witnesses to be paragons of candor. This is especially true of Salemi, who was unable to explain to my satisfaction why Respondent's reason for discharging Camilletti, which he gave to the Regional Office's investi- gator and which he pleaded in the letter he wrote as an answer to the complaint, bears no relationship to the rea- sons set forth in the amended answer filed by the lawyer whom Salemi retained just a few days before the hearing opened. I have taken this aspect of the record into consid- eration in concluding that Respondent's motive for dis- charging Camilletti on July 30 was discriminatory within the meaning of the Act. The second issue is whether Camilletti quit or was dis- charged on July 30. Respondent's third defense (i.e., its first affirmative defense to the merits as distinguished from the pro forma admissions and denials of the allegations of the complaint set forth in its first defense and its invoca- tion of Collyer in-its second defense) that Camilletti volun- tarily quit is nonsense. Dominic Ottobre, Respondent's foreman, admitted Camilletti said at least twice and possi- bly thrice before the afternoon of July 30 that Ottobre could get him his money if Ottobre was not satisified with his work. Ottobre ignored Camilletti each time. There was nothing different about the exchange on the afternoon of July 30 which sent Ottobre into action. Camilletti did not intend at that moment to terminate his employment rela- tionship with Respondent any more than he had in the two or three preceding conversations. A quit occurs when an employee manifests by some overt act his intention to end his employment. Camilletti's intent was to invite Ottobre to discharge him. Ottobre accepted the invitation. The final issue is Respondent's motive for discharging Camilletti. Respondent's fourth defense is in the alterna- tive. It is that Camilletti was discharged because "he ex- pressed a desire to be discharged" or because "the General Contractor had found [Camilletti's] work to be unsatisfac- tory" or because of a "lack of work in that [Camilletti] was unable or unwilling . . to do better work on the `grader,' and there was no work available for him [on] . . . July 31 . . on those machines on which he was proficient." I con- clude, principally on the basis of Ottobre's testimony taken as a whole, that Respondent's motive grew, if not totally then at least in legally significant part, out of Camilletti's complaint to Local 18 on July 28 that he was entitled to be paid for Saturday July 26. Ottobre did not overwhelm me with his candor any more than Salemi did. However, interspersed among his avowals that he only called Respondent's office on the afternoon of July 30 to order Camilletti's final checks because Camilletti had quit are various answers which give insight into the state of his knowledge and his attitude toward Camilletti at that time. Respondent's motive for discharging Camilletti was Ottobre's motive. (There is no basis for a finding, as the General Counsel seems to argue, that Ottobre acted on someone else's, presumably Salem's order.) Ottobre dis- charged Camilletti because Camilletti was a troublemaker. A fair reading of Ottobre's testimony can, I think, lead only to a conclusion that his opinion of Camilletti at that CENTRAL EXCAVATING CO. moment was based in large part on Camilletti 's having gone to Local 18 in the pay dispute and that he would not have discharged Camilletti but for that fact. In summary , if I were to reach the merits of this case, I would conclude that Respondent is an employer engaged in commerce within the meaning of the Act who meets the Board 's jurisdictional standard , that Local 18 is a labor organization within the meaning of the Act , that Respon- dent did not unlawfully interrogate an employee, that it did violate Section 8(a)(3) and ( 1) of the Act by discharging Robert Camilletti on July 30, 1975, and that the unfair labor practice found affects commerce within the meaning of the Act. I would recommend the routine order custom- ary in cases of this kind, that is, one which provides for a broad cease-and-desist order, an offer of reinstatement and backpay for Camilletti , and a notice couched in boilerplate terms. Upon the basis of the foregoing findings of fact, conclu- sions of law , and the entire record in this proceeding, and pursuant to Section 10(c) of the Act , I hereby issue the following recommended: ORDER' 1109 The complaint herein is dismissed; provided , however, that: The Board shall retain jurisdiction of this 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) the grievance or arbitra- tion procedures have not been fair and regular or have reached a result which is repugnant to the Act. 2 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 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