202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Construction and General Laborers' Union Local
No. 534, Laborers' International Union of
North America, AFL-CIO-CLC (Butler County
Area Contractors Association) and Darryl
Thomas.
Construction and General Laborers' Union Local
No. 534,, Laborers' International Union of
North America, AFL-CIO-CLC (Danis Indus-
tries Corporation , B. G. Danis Company , Build-
ing Division) and Charles Baldwin . Cases 9-
CB-5643 and 9-CB-5694
31 July 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 24 October 1984 the National Labor Rela-
tions Board issued its Decision and Order in this
proceeding' in which it found, inter alia, that the
Respondent violated Section 8(b)(1)(A) and (2) of
the Act by arbitrarily departing from objective
hiring hall procedures in referring James Crawford
to a position as union steward out-of-turn and
ahead of Darryl Thomas, who had a higher priori-
ty under the contract's written referral procedure,
and by threatening employees with reprisals if they
filed unfair labor practice charges with the Board.
Upon an application for enforcement of the
Board's Order, the United States Court of Appeals
for the Sixth Circuit, on 11 December 1985, re-
fused enforcement of the Board's Order with re-
spect to the foregoing findings and remanded the
case to the Board for further proceedings consist-
ent with its opinion.2 With respect to Crawford's
referral, the court questioned the Board's conclu-
sion that the appointment of a steward could not
be used as a device to evade specific referral proce-
dures in the terms of the collective-bargaining
agreement which did not specifically provide for
such a steward referral exception. The court found
error in the Board's limitation of contract interpre-
tation to the "four corners" of the contract, and it
remanded the case to the Board for consideration
of whether the agreement incorporated as the
"common law of the shop" a practice of excepting
stewards from the normal referral process. With re-
spect to the threat of reprisals issue, involving a
statement by the Respondent's president that filing
unfair labor practice charges would lead to an in-
vestigation that could hurt "a whole lot of people,"
the court held that a prediction of consequences
beyond the party's control was not coercive and
reversed the Board's finding of a violation. After
the remand, the General Counsel filed a statement
of position.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has accepted the court's remand and
recognizes the court's decision as the law of this
case.3 After further review of the entire record and
the General Counsel's statement of position, we
conclude that the Respondent did not violate Sec-
tion 8(b)(1)(A) and (2) by referring James Craw-
ford to a position as union steward ahead of Darryl
Thomas. The court held that in the absence of a
specific contractual provision regarding the ap-
pointment of stewards, the Board is not confined to
the "four corners" of the agreement. In this regard,
we note the uncontroverted testimony of the Re-
spondent's business manager Ross that the Re-
spondent's practice for the past 30 years has been
to refer stewards independently of the normal re-
ferral process. This testimony is highly probative,
and therefore we find, contrary to the judge, that
the Respondent's appointment of Crawford as
steward was not an arbitrary departure from its
longstanding hiring hall procedures.4 Thus, we
conclude that the Respondent did not violate the
Act by its out-of-turn referral of steward Craw-
ford.5
Accordingly, whether such practice may techni-
cally or correctly be viewed as part of the
"common law of the shop" is unnecessary to our
disposition of this case.
ORDER
The National Labor Relations Board orders that
the Respondent, Construction and General Labor-
ers' Union Local No. 534, Laborers' International
Union of North America, AFL-CIO-CLC, Mid-
dletown, Ohio, its officers, agents, and representa-
tives, shall take the action set forth in the Order re-
ported at 272 NLRB 926 (1984), as modified by de-
leting paragraph 1(c) and relettering the subsequent
paragraphs accordingly.
1 272 NLRB 926.
2 NLRB v. Laborers Local 534 (Butler County Contractors), 778 F 2d
284 (6th Cir 1985) The court affirmed the Board's findings that referrals
of three other workers constituted arbitrary departures from the hiring
hall referral procedures in violation of Sec 8(b)(1)(A) and (2) and en-
forced the Board's Order regarding those referrals
3 Accordingly, we shall modify our original Order by deletmg refer-
ence to the alleged threat of reprisals found lawful by the court
See Plumbers Local 520 (Jesse N. Aycock, Inc.), 282 NLRB 1228
(1987); Painters District Council 2 (Paintsmiths), 239 NLRB 1378 (1979),
enf. denied 620 F 2d 1326 (8th Cir. 1980).
s Consistent with this decision, the Respondent will have no remedial
liability to Thomas for the 10 May 1983 referral of Crawford
285 NLRB No. 30
LABORERS LOCAL 534 (BUTLER COUNTY CONTRACTORS)
CHAIRMAN DOTSON, dissenting in part.
I would reaffirm the Board's finding in its origi-
nal Decision and Order that there is no contractual
basis for the Respondent's out-of-turn referral of
steward Crawford. Contrary to my colleagues, I
would not find that the scintilla of evidence at
issue here-a self-interested union agent's general-
ized and partial hearsay statement that he dis-
patched experienced stewards from the Respond-
ent's hiring hall without regard to their place on
referral lists and that the Union "was ran that way
for 30 years" justifies reinterpreting the parties'
collective-bargaining agreement under "law of the
shop" principles to include an implicit steward re-
ferral exception to the explicit contractual rules for
referral.
Article II of the 1982-1984 contract between the
Union and the Butler County Contractors Associa-
tion (the Association) governed exclusive hiring
hall referral procedures at material times here. The
article extensively detailed those procedures in 18
separate sections. In sum, the contract provided for
referral of job applicants from five hiring hall lists
of descending priority in the order of their place
on a list. Section 13 of article II states that "the
order of referral set forth above shall be followed"
with only two express exceptions: an employer's
request for an employee possessing special skills
and abilities, and an employer's request for an em-
ployee who had worked for that employer within
the past 6 months.
Article II makes no reference to the referral of
stewards. Article X, entitled "Stewards and Griev-
ance Procedures," provides simply that "each job
shall have a working Steward appointed by the
Union." This article makes no reference to the
hiring hall referral system described in article II.
At the hearing in this case, the Respondent's
business manager James Ross repeatedly testified
about the existence of a longstanding unwritten ex-
ception to the contractual hiring hall rules. Ac-
cording to Ross, the Respondent had a 30-year past
practice of referring stewards with experience to
jobsites without regard to their place on the hiring
hall lists.
As an initial matter, I find Ross' testimony to be
extremely unreliable. Indeed, the judge in the deci-
sion originally adopted by the Board described
Ross' testimony as "at times confusing, unclear, in-
complete and vague," specifically discrediting him
where contradicted by more credible witnesses. Al-
though no witness controverted Ross' claim of a
30-year practice of out-of-turn steward referrals,
the absence of directly conflicting evidence is no
reason per se to credit his claim. Ross had himself
been the Union's business manager for only 7
203
years, so that without further substantiation his tes-
timony about a system he inherited is entitled to
little weight. Even more significant, however, Ross
discussed only three specific examples of out-of-
turn steward referrals under the allegedly long-es-
tablished exception. One of those examples, the re-
ferral of Carl Logan, was made as a favor in light
of his financial difficulties, not because he was an
experienced steward. A second example involved
the steward referral of Ross' own son, who appar-
ently had no prior steward experience. Only the
third example, the currently disputed referral of
steward Crawford, is consistent with Ross' claim of
a 30-year practice of referring experienced stew-
ards apart from the general hiring hall list order.
Under these circumstances, I would not credit
Ross' claim.
Even assuming the truth of Ross' testimony
about the Union's steward referral practice, howev-
er, I would find this evidence legally insufficient to
warrant implying an exception to the specific and
express contractual hiring hall procedures. In this
regard, I believe that my colleagues have miscon-
strued the "law of the shop" which the Sixth Cir-
cuit directed the Board to consider.
The essence of a contract, including a labor rela-
tions contract, is the mutual understanding and
agreement to terms by the contracting parties. Sec-
tion 8(d) of the Act clearly embraces this concept.
In interpreting a collective-bargaining agreement to
ascertain exactly what the parties have agreed to,
the Board is not necessarily bound by technical
rules of contract law.' For instance, the Board
should more readily refer to extrinsic evidence to
clarify the intent of contracting parties. The focus
of this evidentiary inquiry still remains the same:
What did the parties mutually intend?
In this context, the common law of the shop has
evolved as a useful tool for contract interpretation.
Speaking specifically of labor arbitrators, but with
equal applicability to the Board and courts, the Su-
preme Court referred to "the practice of the indus-
try and the shop" as "equally a part of the collec-
tive bargaining agreement although not expressed
in it."2 Due to the extraordinary breadth of matters
covered by such an agreement, "[g]aps may be left
to be filled in by reference to the practices of the
particular industry and of the various shops cov-
ered by the agreement. Many of the specific prac-
tices which underlie the agreement may be un-
known, except in hazy form, even to the negotia-
tors."3
' See, e g , Timberland Packing Corp, 261 NLRB 174 , 176 (1981), and
cases cited there
2 Steelworkers v Warrior & Gulf Co, 363 U S 574, 581 (1980)
1 Id at 580
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The law of the shop doctrine clearly did not ob-
viate the need to limit a contract to mutually un-
derstood and agreed to terms. The doctrine also
does not impose a system of evidentiary evaluation
where extrinsic evidence necessarily outweighs the
language of an agreement. On the contrary, the
more express and comprehensive a contract's defi-
nition of a particular bargaining subject is, extrinsic
evidence is less likely to affect the Board's interpre-
tation of the parties' agreement on that subject.4
In the present case, the extensive and detailed
terms of article II of the Union-Association con-
tract leave no obvious "gaps" requiring reference
to industry or shop practice. Furthermore, article
X of the same contract makes clear that the negoti-
ating parties expressly contemplated the role of
stewards in their labor relations. Consequently,
there is little basis to infer a latent ambiguity from
the failure of article II to make express reference to
the procedure for referring stewards from the
hiring hall.5
Reviewing Business Manager Ross' testimony in
light of the contract language, I note that he did
not say that the steward referral exception was a
generalized practice within the construction indus-
4 E.g, Electrical Workers IBEW Local 11 (Los Angeles NECA), 270
NLRB 424 (1984)
5 It is apparent from the Sixth Circuit's opinion in this case that it
agrees with the Board's original finding, contrary to the Union's primary
contention, that a steward exception cannot be based on the contract
itself
try or within the laborers' craft . He also did not
say that any employers utilizing the Union 's hiring
hall referral system were aware that stewards were
being referred without regard to their seniority on
the hiring hall list . In addition , there is insufficient
record evidence to establish that the Union publi-
cized its steward exception or implemented it in
such a way that employers or employee applicants
knew or reasonably should have known about this
alleged practice . Under these circumstances, I
would find that Ross ' testimony , even if credible, is
insufficient to outweigh the express terms of the
parties ' collective-bargaining agreement and to es-
tablish a steward referral preference under the law
of the shop doctrine.
Moreover , for the reasons stated in my dissenting
opinion in Plumbers Local 520 (Jesse N. Aycock,
Inc.), 282 NLRB 1228 (1987), I would find an
8(b)(1)(A) and (2) violation for the Respondent's
out-of-turn referral of steward Crawford even if
the applicable collective -bargaining agreement
were construed as permitting such a referral. In my
view, the blatant hiring discrimination involved in
allowing a union to disregard the usual order of re-
ferrals when referring a steward can only be per-
mitted when the union demonstrates that a particu-
lar steward referral is based on substantial and le-
gitimate considerations . Because the Respondent
has made no such demonstration with respect to
Crawford's referral , I would reaffirm the finding of
a violation in the Board's original decision.
