Local 3217, Communications Workers

.O( \ 3217. ('()M1IlNI(AIIONS W()RKIERS Local 3217, Communications Workers of America, AFL-CIO (Southern Bell elephone and Tele- graph) and Cynthia Williams Morgan. (Case 1() ('13 2835 Jlunet 26. 1979 DI)(CISION ANI) ORI) R BY C(IIAIRMAN FANNIN(i ANI) M IMBI RS .J1 NKINS ANI) Mt R'IIY On Januar3 11, 1979, Administrative Law Judge !lenry I.. Jalette issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent iled 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-nmember panel. The Board has considered the record and the at- tached Decision in light of the exceptions nd briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of' the Administrative Law Judge and hereby or- ders that the complaint herein be, and it hereby is. dismissed in its entirety. I We agree with the Administrative Law Judge's conclusion that Resport dent did not fail o process the Charging Party's grievance for arbitrary. capricious. and insidious considerations. Moreover. we note that. although Respondent did not lfirmally process the grievance. arious Respondent offi- cials undertook inlfrmal discussions with management seeking to have the Charging Partl's suspension lifted or reduced The honal ides of those efforts have not been challenged. In fact. one management official. testifying on behalf of the General Counsel, stated that Respondent's president made a "very persuasive" argument on behalf of the ('harging Party. Under the circumstances of this case. Respondent's efforts rose abhve a perfunctory and arbilrar) treatment of the Charging Party's difficulties. See Truc Drivers, Helpers. Ta.ricah Drivers. Garage Emploees and Airport Emplovees Local Union No. 355, affiliated with International Brotherhood of Teamsters. (haul- feurs, Warehousemen and Helpers of America (Monarch Insiutiuonal Food,). 229 NLRB 1319 1977). 2 Member Murphy concurs in the dismissal of the complaint herein, but is impelled to observe that the nature of this case is not one warranting issu- ance of a complaint in the first instance. With all the cases backlogged and awaiting hearing before administratise law judges for as long as 4 and 6 months in the future, the General Counsel should husband the resources of the Board and the time of the administrative law judges and refrain from bringing such obviously nonmentorious cases to clutter up the "pipeline." DECISION S1AItMENT OF Hiti CASE HENRY L. JA.ETTE, Administrative Law Judge: his pro- ceeding involves an allegation that the above-named Re- spondent violated Section 8(b)( I 9(A) of the Act hb tailing and refusing to process a grievance tiled h\ the above- narned Charging Part, becaluse ot' arbihirar and inidious considerations. The proceeding is based on a charge tiled on I ebhruar 3., 197X. pursuiant to which complaint issued on March 16. 1978. On Augusl 7, 197X. a hearinlg was held in Macon, (Georgia. Ilpon the entire record, including m oscrvaionl of thc witnesses and alter consideration of the bricfs of the par- ties I herehb make the tollowing: I. I t II I \( IS Southern Bell I elephone and I elegraph. herein called Southern Bell. is a New York corporation with an olice and place of business in Macon. (ieorgia the facilit at which the events herein occurred, where it is engaged in the business of providing telephone ser ice.' At all times mate- rial herein, Southern Bell and Respondent ha\ve been par- ties to a collecti e-hargaining agreement containing. inlwr a/ial a grievance and arbitration claluse O()n July 26. 19772, (Cynthia W\illianm Morgan a directors a;sistance operator anld a member of Respondent, was sus- pended to 2 dayN tfor being discourteous to customers. She testified she spoke to IElsie Davis. the job steward in her department. about it, and Davis told her she should call Nell Thames, president of Respondent. She did so that same evening and Thames told her to write up her griev- ance and submit it to her. The fobllowing morning, Morgan took her grievance to the union hall and deposited it in a mail slot. According to Morgan thereafter she never heard from hames again andl was unsuccessful in repeated et- forts to contact her. Moreover. she asserted she spoke sev- era times about the matter to Union Representative Brenda Williams who told her she was not handling it and advised her to talk to Thames. When she tiled the instant charge on Februar) 3, 1978. Morgan still had heard noth- ing about the status of her grievance. The record indicates the following relative to Respon- dent's handling of the grievance: I. Elsie Davis. job steward, testified that on July 16. she came upon a crying Morgan and asked her what was wrong. Morgan told her she had been suspended for rude- ness to a customer and not giving out a zip code. [)avis asked her if the charge was true and Morgan said >ses be- cause she was upset because her husband was in the hospi- tal. Davis told her to go home and said she would talk to her supervisor. Davis went to Supervisor Javene Mitchell and asked her what happened. and Mitchell told her that Morgan had been rude and failed to give out a zip code. Davis reminded her that they were not required to give out zip codes. Mitchell said that was not why she suspended her: rather. it was fr her rudeness. She also indicated she would not alter her decision, reminding Dasis of another grievance of Morgan's over a prior suspension for rudeness which the Company had rejected. Davis called Nell I Jurisdiction is not in issue. Respondent admits Southern Bell meets the Boa rd's standards for the asserin of jurisdtil n Unless otherwise indicated. all dates appearing hereafter are n 1977 243 NLRB No. 20 I)IO('ISl()NS ()I NI)NM. IN .AI,()R Rl.IAI IONS BO()ARI) harnmes swho had ailready heard fron Morgan and l haines told her she would take care ol the matter. Someti me there- after, )avis had a conversation with Illhaies in which l)a- vis expressed the view they did not have a leg to stainll on insofar as the griecaiice was concelned. 2. Javene Mitchell corrohorated Dasvis' testilmionl abou their conversationm hut she denied that Davis asked her to change her mind and revoke tile Suspension. She tSltified that the day following the suspension I hanes called her and she told her whal htad happened. Thanies told her she would get hack in touch with ier hut never did. Mitchell testified that no other union representative got hack in touch with her. 3. Brenda Willi;ams, departmental representative or Re- spondent, testified that Thames gave her Morgan's gric - ance on thile ;lst uesda i August and that therealter she tried repeatedly, without success, to contact Morgan. She testified further that in the latter part o' September she spoke to Mitchell and asked her to lilft the suspension. Mitchell ref used. Several days later she reported this to Thames who said she would see what she could do ahout it. That ended Williams' participation in the matter. 4. Nell Thames confirmed having conversations wilh Morgan on July 2(. and Mitchell and D)avis n Julv 27. in which she learned about what had happened. She testified that Morgan's written grievance, unsigned, was not suh- mitted until 3 weeks later and that shortlN thereafter she turned the matter over to Brenda Williams. She contra- dicted Morgan's testimony about not speaking to her after July 26. Thames testified Morgan called her several times, and on one occasion she told Morgan she would have to check with Williams: Morgan said she would. Thames testi- fied that she talked to Supervisor Waldorf with no success. and that on November 3 she discussed the matter with Samuel Harrell, the new district manager, and he said the Company would not alter its position in light of Morgan's past history. 5. The record indicates that on November 4, Robert Ro- land, a representative of Respondent. called Samuel Har- rell, district traffic manager, wanting to know where to send form 3.G.3., the official grievance form. larrell testified he told Roland he could not accept the 3.(i.3 because it was 5 weeks past the 60-day deadline as set forth in the contract. Harrell testified that an additional reason for this refusal to entertain a 3.G.3 was the fact that there was no showing that a first level meeting had been held as also required by the contract. As far as the record shows, the matter ended there. Re- spondent never told Morgan about the Company's position or told her the grievance was dropped. As noted above, on February 3, 1978, Morgan filed the instant charge. II. ANAILYSIS AND (ON(' USIONS The main difficulty in this case is in trying to figure out what happened. Whether because of a lack of thoroughness and precision in the examination of witnesses or because of the temperament and personalities of the witnesses, the pic- ture that emerged of the handling of the grievance is a bi- zarre one. Thus, according to Morgan. after she filed the grievance no representative of Respondent ever spoke to her about the matter and when she spoke to Union Repre- slentatie W\illiamis she was told Williams was not handling it and she \waIs to talk to l'hames. v1hon, Morgan asserted, she had been unable to reach. Apparently it was lor this reason she decided to file the instant charge. Yet she onlh did so on February 3, 1978, alter a period of months during which, according to her own testillonN. she dill nthing to find ut what hald happened to her grievance ()n the other hand, while Iharnes contradicted Morgan's testinl on' ahot a lack of contacts between them, according to her ,OW n testinmoll the onl thing she told Morgan was to contact \Villialm. According to Williams, Morga;n ne er litl: Williams tried unsuccesslull to call Morgan and even- tuall, returned the matter to Ihaimcs. Respondent ofltred no e idence that thereafter Morgan wias ever contacted or told the status of her grievance. On the bhasis of' the foregoing then, whether Morgan be credited. or Ihamnes and Williaims in either event Morgan was never interviewed h anll uniion representative, nor was she ever told the status of her grievance. According to Re- spondent's witness, the tfault la) with Morgan according to Morgaini it lay with Respondent. In m judgment, neither acted with any degree of diligence Be tha;t as it may, I do not leemi the failure to nterview Morgan dtispositise of the case. 'lhe subject matter of the grievance ,vas very simple nalel , whether Morgan had been discourteous to a cus- tomer. According to Steward Davis and President 'Iha es, Morgan had admitted to theml that she had been discourtle- utis. Morgan denied this and, while she may not hitae told them, il htiler' 'r'b, "I was discourteous," I an persuaded that in reporting the incident to them she, in effect, admit- ted her guilt. Accordingly, I credit Davis and Thames in this particular. In light of this. an interview with Morgan was not essen- tial. However, Article 21.01, ('.l b, establishes as a first step in the grievance procedure a first level (informal level) meeting "... among the grievant. the Union representative . . the supervisor involved or other (ompany representa- tives." Inasmluch as Respondent's representatives never made contact with Morgan. no such meeting was ever held. As a consequence, the grievance was time barred when Union representative Roland sought to file Form 3.(Ci.3. to bring the grievance to district level. The failure to hold a first level meeting and the conse- quent time bar are circumstances which might well support a finding of a violation were there any substantial evidence of animus against Morgan. There is none. There is some evidence of animus against Morgan's husband Carl and against Morgan's mother-in-law, both of whom are also employees of the Company and members of Respondent. Thus, documentary evidence shows a dispute between Thames and Carl Morgan in 1975 relative to Morgan's han- dling of certain union matters. inchluiding grievances, and Thames' removal of Morgan from his position as steward. It consists of testimony of Patsy Starley, an employee of the Company and a member of Respondent. that about Christ- mas. 1975, she had a conversation with Thames during which Thames told her she was going to push Morgan's head through the wall in Starley's office and frame it. Fi- I credit Williams' eslimon' of her efforts to make contact with Morgan hut I would not absolve Respondent for not pursuing the matter further 86 LO(CAI 3217. ('OMMt NI(AII()NS \()RK.lRS nally. it consists of' testimon of'. 1. Phillips, a department union representa tise. that about tile middle of' October. he spoke to Thames a bout Cynthia's grievance and, apart f'lonl telling him the grievance was in recess, Thames told him that the Morgan fimii was craz. that ('arl organ's mother was two-al:ced, that she would stab a person in the back, that she had just handled a grievance tfor C('nthia about her schedule, and that she was getting sick and tired of the Morgans. It seemed like eers time she turned around the5: were doing something. 4 In mx judgment this evidence is insufficient to support a finding that the failure to process ('xnthia Morgan's griev- ance was based on arbitrary. capricious, and invidious con- siderations. The first two matters described related to con- duct in 1975, and the record indicates that subsequent thereto Respondent processed gries ances on behalf' of both Carl and Jeff Morgan, including in Jeff Morgan's case an attempt hy Respondent to obtain approval to go to arhilra- tion. As to the remarks Thames made to Phillips. it appears to me they were nothing more than expressions of exaspera- tion with members who were fiequentlI involved in griex- ances. But if Respondent's failure to process Morgan's griex- ance is not attributable to Thanmes' animnus against the Morgan ft'amil. how does one account for the failure' In my judgment, the failure is attributahle to Respondenl's good-faith belief that the grievance had no merit. a belief' engendered by Morgan's own remarks to Steward )Dais and President 'lhames on the date ol'f her suspension. hb Morgan's prior history of similar offenses, and bh Supervi- sor Mitchell's reputation for reliabilit. In so finling. I am mindful of the fact that Thames waffled in her testimon about the way the grievance was handled and did not un- equivocall1 state that the only reason the grievance was 4 Thames denied thal she madei the remarks attributedl t her h Starles and Phillips. llhiough I hlave redihld Ihmlile, relllmse Iio . cionersatlon with Morgan. in this maiter I arn persualded thil Sres illid Phillips are testifling truthlulls and I credit them handled ias the record describes was her belief' it had no merit. I his was onl, prt ol' her reason. I ali also mindful of the f;act that. despite the assertion that the grieslance had no merit. Respondent netertheless helatedls a;llempted to file a 3.( .3. I do not find that action inconsistent. Respon- dent tnlla well ha;le feared that such actilonl \wa;s leess;I to protect ilself from charges exen ithough it behe\ ed the grie - ance had o merit. Whalteer the reason I liil lnol pl'r- sl;aded that te incotlsislencles in Responden t's detenses support a inditig that Repsondeit's conduct \N;as hased on arhiirari . capricious, and iLn\idiois cnsiderations.. ('(t, I t sl .s ()1- 1. \\X 1. Southern Bell elephone and Telegraph is an em- ploer engaged in comnmerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent, ocal 3217. (ommunications Workers ol' Anierica A ('10. is ait labor organization \s thin tlhe nleanig of' Section 2(5) of the Act. 3. he (ieneral ('ounsel has ailed to establish hx ai pre- ponderance of the e\ idence that Respondenl i tolated Sec- tion (h b)( I )( A ) of the ct h its handlingi of' the ries ance of (' \nlhia \lorgaln. I'pin t ihe loregoing indings I l act. conclusions of law antl Ihe entire record inl this case. and pLursuIant to Section f((c) ol the Act, I issue the ollowing recommnended: ORDER' The complaint is dismissed in its entirets. In the cenl no exccplons are tiled ;i preided h Se, 12 4(, t Ihe Rules .and Regulalions ,o he %ainatI tlabor Relations Board. Ihe indings. concluslt,lns. lld recmlnended Ordcr hClrrrll I.1 1 l. pr etl 1Im Sr 112 48 of the Rules Iaid Regulations. bte ado.ped h the BHi.oa r ndn hlCOe Its fillrings. Ci1rttlltlitis and ()rdel nd ll hsleC'llis herel xhtlIl he deemed ,Ir ed tor il prp- es 87