Allied Food Workers Dist. 103

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Allied Food Workers District Union No. 103 affiliated with Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO (General Foods Corporation, Maxwell House Division ) and Emmy Lu Hutson and Annabelle Frances Warchol. Cases 23-CB-846 and 23-CB-846-2 August 27, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On August 19, 1968, Trial Examiner Boyd Leedom issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Decision. Thereafter the General Counsel filed exceptions to the Decision, together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint be, and it hereby is, dismissed in its entirety. 'We agree with the Trial Examiner's conclusion that the complaint be dismissed , but solely on the ground that the General Counsel has not established by a preponderance of the evidence that Respondent handled the grievances in the manner which it did because of the grievants' nonmembership in the Respondent Union It is unnecessary to decide whether the grievances were meritorious. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BOYD LEEDOM, Trial Examiner: These consolidated cases were tried in Houston, Texas, on June 5 and 6, 1968. Separate charges, by the individuals named in the caption hereof, were dated and filed April 12; and the document containing the order consolidating the cases, and the complaint issued on the charges, is dated May 10; all in 1968. The thrust of the complaint as to Warchol is that the Union failed and refused to process a grievance (filed by her complaining of inequities in overtime assignments) because she was not a union member; and as to Hutson that the Union refused to process a grievance she filed (complaining that her employer failed to award her a promotion to which she was entitled by reason of seniority) because of union interference inasmuch as she was not a union member; all in violation of Section 8(b)(l)(A) and 8(b)(2) of the National Labor Relations Labor Management Relations Act, as amended. Respondent's Answer denies specifically the paragraphs of the Complaint alleging restraint and coercion of the employees in the exercise of Section 7 rights under the Act, and affirmatively avers it has not engaged in any acts attempting to cause discrimination or of interference with the rights of the Charging Parties Warchol and Hutson. At the opening of the trial counsel for the Respondent moved to dismiss the complaint for the reason it fails to state an actionable cause in that there is no allegation that Respondent acted in bad faith, or was unreasonable, capricious or arbitrary respecting the grievances filed by the Charging Parties. This motion was denied and the case was tried on the issues raised by the allegations of the complaint and the denials contained in the answer. On all the evidence adduced, on my observation of the witnesses as they testified, and on careful consideration of the briefs filed, I make the determination, on the basis of the findings of fact and conclusions of law hereinafter set out, that the General Counsel has failed to prove by a preponderance of the credible evidence, any violation of the Act by Respondent and therefore recommend that the complaint be dismissed. FINDINGS OF FACT AND CONCLUSIONS OF LAW I THE JURISDICTION OF THE BOARD THE LABOR ORGANIZATION Respondent admits, and I find, that the allegations of paragraphs 3, 4, and 5 of the complaint are true, respecting the nature and the extent of the business and commerce of the Employer Maxwell House Division of General Foods Corporation; and the nature of the Respondent Union; and therefore conclude that said Maxwell House Division is an employer engaged in commerce; and that Respondent is a labor organization; within the meaning of the Act; and that this proceeding is therefore within the jurisdiction of the National Labor Relations Board. If. THE ALLEGED UNFAIR LABOR PRACTICES A. Warchol's Grievance On March 5, 1968, Annabelle Warchol filed a grievance growing out of claimed discrimination in the failure to grant her a proper share of overtime because of a systematic favoritism of chief steward of the Union, Onoray Davis. This, as she charged, came about in the implementation of the overtime plan negotiated between the Employer and Respondent Union, bargaining representative of the employees in the unit of which she is a part. The Warchol written statement of the grievance, General Counsel's Exhibit 3, shows the signature of Warchol on the line provided on the form for the grieving employee's signature. In addition however to her 178 NLRB No. 41 ALLIED FOOD WORKERS DIST. 103 signature, the names of other employees appear as signatures in blank space on the form, following the lines provided for the statement of the grievance, and near the signature of Warchol. The testimony of various witnesses create something of a dispute as to whether this grievance was the grievance of Warchol alone or of the other employees whose names appear near hers on the grievance form. This issue is significant to this extent If all the employees whose names appear on the form were actually grievants, the Union's withdrawal of the grievance (if detrimental to employees' rights) would have been detrimental to all the employees and not Warchol alone and therefore detrimental to union employees as well as nonunion employees. For the evidence shows, and I find, that certain of the employees whose names appear alongside that of Warchol, are union members One, Frieda Heuermann, is a department steward. Thus such circumstance tends to establish that the Union's action respecting the grievance was not based on union considerations. Warchol testified that she did not know how the other signatures got on the grievance. Counsel for the General Counsel argues that this circumstance plus the fact that the form shows at the appropriate place that the grievance is "From" Warchol makes it hers alone. This however is not persuasive and from all the evidence adduced, particularly the unexplained appearance of other signatures on the grievance, of persons whose right to overtime work would be in jeopardy the same as Warchol's right, if the grievance were valid, requires a finding which I make, that this was actually the grievance of all the employees whose names appear on the grievance form near the signature line. Counsel for the General Counsel notes in the brief that none of such persons whose names appear there testified. Inasmuch as the burden is on the General Counsel to establish his case by a preponderance of the evidence the failure to call these witnesses to refute the reasonable conclusion drawn from the written instrument that they were grievants, must be charged to the General Counsel. The record reveals only in a general way the company practice on assignment of overtime, established by the contract between the Union and the Company. The overtime assignment system applies in 6-month segments with the senior employee at the beginning of each 6-month period being offered the first overtime available. This employee is then shown on the overtime list to have had the number of hours of overtime actually worked; or if he refuses the work he is charged double the hours of overtime actually worked by whoever took the assignment. Thus he becomes the high person insofar as overtime assignments are concerned, and the last to get another assignment . The next offer of overtime goes to the person at the bottom of the list and this employee is charged either the amount of overtime he works, or if he refuses the assignment, double the overtime involved; and he takes a position near the top of the list according to the amount of overtime charged to him. Each successive assignment then goes to the person at the bottom of the list which is graded down, not according to seniority but rather according to the number of hours of overtime charged each employee. If however the person at the bottom of the list, entitled to the overtime work being offered, is absent for various reasons, and the overtime cannot be offered to him because of his absence, he is not charged with double the amount of overtime involved for nonacceptance, but is excused and remains at the bottom 229 of the list entitled to the next offer. One of such excused absences is absence due to activity as a union official. Other absences relieving the employee from a charge of unaccepted overtime are jury duty, sickness and any other personal leave granted by the Employer in writing. The record is not entirely clear as to all of the details of this overtime system, either from the testimony of witnesses relating thereto, or the statement made to the record by counsel for Respondent with which there was acquiescence by all parties. The foregoing explanation however appears to be correct insofar as the record reflects the system. It furnishes adequate background for an understanding of the substance of the Warchol grievance. Onoray Davis, Respondent's chief steward, maintained preferred status respecting overtime assignments because of the great amount of time he was absent from duty on union business as chief steward. The testimony reveals that he was granted by the Company, under the collective-bargaining agreement with the Union, 10 hours absence weekly for the performance of union business, and was entitled to take as much more than 10 hours as his position as union steward required. The time in excess of 10 hours lost from his regular employment, was compensated by the Union. Nothing in the agreement respecting overtime work, or in the evidence adduced, makes clear whether Davis should have been excused from offers of overtime that came to him during absences in excess of 10 hours on union activity, but under the practice it appears he was excused. Furthermore this uncertain factor is not relevant to the issues here inasmuch as the General Counsel' s case is not structured to the point. Thus no evidence was adduced to show, and none tends to show, why the Company's practice of applying the overtime formula to both periods, should not apply to both; or any rational basis for making a distinction between the 10 hours allowed Davis by the Company for union business, and the weekly excess, if any, over the 10 hours. If the practice actually does differ as to the two periods, or if there is a substantial basis for distinction, it was the burden of the General Counsel to make the proper showing. The Warchol grievance never got beyond Step I. The procedure contained in the collective-bargaining agreement, provides that in Step I the grievance shall be reduced in writing and shall be "taken up by the Chief Steward. . ." (Onoray Davis, in this case) and other specified persons including one or more management representatives, and if not settled in 7 days the grievance shall pass to the next step. Whether under either the practice or the contract, attendance of any other person than the steward and management representative, is compulsary. does not appear from the evidence. A few days after the Warchol grievance was filed in the personnel office of the Employer, Jim Luster, assistant personnel manager and Onoray Davis, chief steward, met to consider accumulated grievances. Davis' testimony stands as the only explanation of the disposition made of the grievance at this meeting with Luster. He advised Luster that the thrust of the grievance, that is, "that he (Ray Davis) be charged with the overtime hrs., he is excused by the Co. & paid by the Union" did not constitute a valid grievance because he, Davis, was excused from the application of the overtime rule when on union business. Davis and Luster than completed a "Step I Meeting" form, (appearing on the reverse side of the statement of the grievance, G.C. Exh. 3) Davis signing as chief steward and J. Luster signing as personnel 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative In the appropriate box an X indicated that the matter was "Settled" rather than "Passed to Step II " Under the heading "Settlement" on this form appears the handwritten notation "Withdrawn at Union Request." It is this disposition of the grievance that provoked Warchol to file the charge in the instant proceeding. The record is clear that she was not present at the meeting when the grievance was withdrawn, and insofar as the evidence shows, no other person was present with Davis and Luster. Counsel argues, as an element of the violation, that the indication the grievance was "Settled" in Step I is erroneous because Warchol testified the grievance was not settled Obviously this interpretation placed on the word "settled" implies that if the case had been "settled" Warchol would have been granted some relief This interpretation does not seem warranted. For "settled," thus interpreted, would preclude final settlement of a grievance in Step I except where relief was granted the grievant Perhaps a better word would have been "Denied", but regardless of the implications of the word "settled" as used to indicate the disposition made of the grievance, the argument seems beside the point So does the other argument that Warchol was never granted a hearing in Step II of the grievance procedure For the crucial question is whether the grievance was stopped in Step I because Warchol was not a union member It is the thrust of the Respondent's defense that such preferred treatment as was accorded Davis with respect to overtime assignments, came to him rightfully under the agreement made and entered into between the Union and the Employer, and that the grievance thus necessarily lacked merit, based as it was on a proper implementation of the system in effect for overtime assignments; and that the grievance was therefore properly withdrawn I find and conclude that the evidence substantially supports this defense; and that the General Counsel has failed to establish by a preponderance of the evidence either (1) that the grievance was meritorious or (2) that the withdrawal was because of Warchol's nonmembership in the Union. Counsel for the General Counsel concedes that his case consists of two parts, (1) that the Union failed to process the grievances (a part of the case well established if by "process" it is meant that the grievance be taken through all the steps including arbitration), and (2) that the Union's failure and refusal to process the grievance was because Warchol was not a member of the Union In his brief, counsel makes it clear that apart from nonmembership in the Union there are "no arbitrary, irrelevant or invidious considerations involved in the case. ." This eliminates all question as to whether Onorary Davis withdrew the grievance because the advantage he enjoyed personally in overtime work assignments was placed in jeopardy. Inasmuch as the chief steward had this personal interest in the subject matter of the grievance, it would have been discrete for the Union to arrange for the handling of the grievance by some other union official, but this failure in the light of the lack of merit in the grievance, cannot in my judgment convert this matter into an unfair labor practice, and as previously indicated the case was not tried on this theory and evidence was not adduced to support unfair representation because of the chief steward's personal interest in the subject matter Considerable emphasis was placed at the trial on the failure of Respondent to have Warchol present in the Step I consideration of the grievance, and its withdrawal in her absence from the session This is also stressed in the brief Granting, however, that it would have been tactful and considerate handling of the grievance, to have invited Warchol to be present at the Step I meeting, it is not clear from the record and I cannot make a finding supported by credible evidence, that the failure to do so constituted a violation of either the rules or the practice respecting grievance handling. Again, this lack of finesse in handling the grievance, in the light of its lack of merit, and even when considered along with such other circumstances as might point toward a violation, cannot be treated as adequate support for a finding of an unfair labor practice. While a union's methods in handling grievances for nonmembers should often be viewed critically, on the other hand there must be a preponderance of evidence of discriminatory treatment before an unfair labor practice can be found; otherwise the machinery set up for handling a heavy flow of complaints, will become unduly encumbered I fail to find substantial evidence to support a finding of an unfair labor practice here In reaching this decision some weight is given to the fact mentioned early in this discussion that the totality of the evidence, especially the written document itself, leads to the conclusion that the Warchol grievance actually was made not only for Warchol, but also in behalf of some union member employees whose interests respecting the subject matter of the grievance, were the same as Warchol's Counsel for Respondent makes two other points in defense Neither is of great force, but both tend to becloud the General Counsel's case. The first point rests on this fact It would be very difficult to ascertain from the record, as made, whether Warchol was in her department long enough to be entitled to overtime work when she filed her grievance. This is due to a discrepancy in her testimony at the trial and in her pretrial affidavit, a discrepancy which created general confusion that engulfed not only Warchol but counsel for the General Counsel as well This defect in the case was not necessarily a deliberate falsification but an uncertainty as to a fact that surely could have been cleared easily by offering company records as to the time Warchol entered the department. The second point is that th;, Union had processed other grievances for Warchol when she was not a union member. The evidence on this point, however, is not such as to add substantially to Respondent's other defenses B The Hutson Grievance The allegations of the complaint respecting Hutson are dismissed for the same basic reason as the Warchol grievance, that is according to the evidence, the grievance was without merit, not entitled to processing beyond Step I; and it was not because of Hutson's lack of membership that the Union did not process it further. The evidence reveals, and I find, that an opening occurred in a laboratory technician's job on March 7, 1968 Hutson and several other employees applied for the promotion. Under the terms of the collective-bargaining agreement the position would go to the senior employee who possessed all the necessary qualifications including certain adequate "test scores" obtained on examinations taken before the notice of the job vacancy "came down" from a 3-day posting period. It is conceded that Hutson lacked test scores on two of the required examinations at the time the posting of this job "came down " The evidence reveals further, and I find that Hutson had gone to the personnel office of the Company to take ALLIED FOOD WORKERS DIST. 103 the two tests (which she later took obtaining satisfactory scores) prior to the posting of the job and in ample time to meet the requirements, but was told by management that she could not take the examinations then and would have to return at a later date The first of the two examinations was taken on March 12, and the second on March 13, both too late to meet requirements Hutson's effort to take the tests on the earlier date was not specifically related to the job vacancy involved here, but was made because she anticipated similar jobs would be available through the construction of a new plant and a greatly enlarged operation She could have taken the required examinations any time over a period of many weeks prior to the posting of the job in question. There is no substantial dispute respecting any of the findings set forth in the last two paragraphs. The complaint does not run against the Employer and there is no evidence even tending to show collusion between the Union and the Employer respecting the deferred dates for Hutson's two examinations. The evidence further reveals, and I find, that the job was awarded to a union member, Charles T Jeter over whom Hutson was senior. Other senior applicants were also found not qualified. At the time the posting of the job "came down" from the bulletin board Jeter, like Hutson, was also lacking in certain required test scores The collective-bargaining contract however provides as modification of the rule requiring the applicant to have the adequate scores before the end of the posting period, that if an applicant is away on excused absence during the posting period, and does not have adequate test scores, he shall have 48 hours in which to take the tests and if possible obtain the satisfactory scores It is conceded that during the posting period for the job involved, Jeter was on excused sick leave. In the permissible time following the posting of the vacancy, he took the tests and obtained the proper scores, thus becoming the senior employee qualified and eligible for the promotion under the established rules Failing to be awarded the job, Hutson filed the grievance in which she sets out in abbreviated form essentially what occurred as hereinbefore recited She inserted the word "discriminating" on the line of the grievance form providing for the "alleged clause violation " No contract clause is specified and her allegation that there was discrimination does not indicate whether it was by the Employer or the Union or both As appears from the foregoing recital of the evidence, and as I find and conclude, the award of the promotion to Jeter was made according to the contract provisions, and there was, therefore, no merit to Hutson's grievance. As in the case of the Warchol grievance, this one was withdrawn by Onoray Davis on behalf of the Union, when the grievance came up for consideration by Davis as steward, and J. Luster, personnel representative. The Hutson grievance presents a problem not present in the Warchol grievance. It appears that Hutson had enlisted the aid of a job steward in another department in connectionwith her grievance -David Hobbs, apparently a friend He had no authority in the matter but was willing to advise her He arranged a meeting, after the grievance had been withdrawn, with high level management where he, Hobbs, and Hutson were present. Onoray Davis could have been present but was not When Hobbs was advised by management at this meeting that the award of the job had been made according to the contract and that there was no merit to the grievance, Hobbs seemed to have held a conflicting view and stated that the matter might have 231 to be taken to the Labor Board. This contrary view of Hobbs was held notwithstanding he acknowledged a sequence of events in connection with Hutson's action respecting the tests and the other contract provisions, essentially as hereinbefore set out. He testified that in his effort to lend assistance to Hutson, he talked to Davis and asked why he had not pressed the Hutson grievance further; and that Davis responded "he had no intentions of fighting for any damn scabs " While the precise time of this statement cannot be fixed, the evidence indicates, and I find, it occurred after Hutson had advised Hobbs that her grievance had been withdrawn. Davis denied that he made such a statement Resolution of the credibility conflict cannot be made easily, but I find that Davis did make some such statement as that attributed to him by Hobbs. The Davis denial was not made with great conviction and there is a hint of evasion in his somewhat loquacious statement on the subject Furthermore the statement attributed to Davis is one that quite naturally could be made under all the circumstances involved, as hereafter appears. Notwithstanding my finding that Davis made substantially the statement attributed to him, I do not conclude it establishes that the Hutson grievance was actually withdrawn because Hutson was not a union member. Significantly the Davis statement came after the fact of the withdrawal of the grievance. It therefore was not a part of the act of withdrawal. Even though it can reasonably be argued that the statement does reveal the purpose and state of mind of Davis at the earlier time of the withdrawal of the grievance, in my judgment it is much less probative on the issues of the case than if it had been made prior to the time or at the time of the act of withdrawal. Intermingled with the conclusion just stated is the provocation Davis had for some such statement that inevitably grew out of the circumstances in which it was made Thus he found himself in a conflict with another union steward who lacked all official connection with the problem. The situation at best was troublesome, without a fellow union worker adding problems. Vexed as he must have been when confronted by Hobbs on Hutson's behalf, it is understandable that he would resort to an expedient reason to support a decision made on a meritorious basis as hereinbefore set forth, when such reason, though not real, would likely be most persuasive between union members. The basic foundation of this viewpoint is of course the fact that according to the record of evidence introduced in this case the Hutson grievance lacked merit and Davis had good reason not to process it beyond Step 1. In my judgment the Davis "scab" statement made under the circumstances outlined, and resting on the somewhat uncertain foundation of a difficult credibility resolution, is not sufficiently substantial to support a finding of an unfair labor practice. It cannot overcome my conclusion, based on all the evidence that the grievance was stopped at Step I because it lacked merit, and for no other reason. Because of the inadequacy of the evidence adduced by the General Counsel this grievance, like that of Warchol, should be and hereby is dismissed. III. CORRECTION OF TRANSCRIPT Counsel for the Respondent, pursuant to an order heretofore entered, has proposed numerous corrections to the transcript of testimony herein. Counsel for the General Counsel has agreed that such corrections should be made; and good cause appears for making them. It is therefore 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ordered that all of the corrections noted in the' changed and corrected as fully as if said proposed changes Respondent's Proposed Compliance With Order for and corrections were written into and made parts of the Correction of Transcript, dated August 9, 1968, be and said record of testimony herein. the same are hereby made; and the transcript is hereby