Oil Workers Local 1-5 (Standard Oil Co. of Calif.)

OIL, CHEMICAL AND ATOMIC WORKERS INTL. UNION Oil, Chemical and Atomic Workers International Union, AFL-CIO and Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local I- 5 (Standard Oil Company of California Western Operations, Inc.) and L. D. Sweet. Case 32-CB-17 (formerly 20-CB-4291 ) January 9, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On September 21, 1977, Administrative Law Judge Earldean V. S. Robbins issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent International filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge: This case was heard before me on August 2, 1977. The charge was filed by L. D. Sweet, an individual, on March 16, 1977, and a copy thereof was served on Respondents on March 17, 1977. An amended charge was filed by Sweet and served on Respondents on April 28, 1977. The complaint, which issued on April 29, 1977, alleges that Respondents violated Section 8(b)(1XA) of the National Labor Relations Act, as amended. The basic issue herein is whether Respondents refused to take Sweet's grievance to arbitration because she was not a member of Respondents. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of briefs filed by the parties, I make the following: t All dates from August through December are in 1976. and all dates from January through April are in 1977. unless otherwise stated. 234 NLRB No. 24 FINDINGo OF FACT 1. JURISDICTION Standard Oil Company of California, Western Opera- tions, Inc., herein called Standard Oil, a California corpo- ration, with a refinery located in Richmond, California, is engaged in the production, refinement, and distribution of petroleum products. During the past calendar year Stan- dard Oil, in the course and conduct of its business operations, sold and shipped goods valued in excess of $50,000 directly to customers located outside the State of California. The complaint alleges, Respondent admits, and I find that Standard Oil is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that each Respondent is a labor organization within the meaning of Section 2(5) of the Act. IIl. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Sweet was employed by Standard Oil in March 1973. At the time of her discharge she was working in the purchas- ing and stores department. On August 25, 1976,1 she was stopped by Foreman J. M. Baker and a security guard at the end of her shift when she was preparing to leave the premises with a Company-owned coffeepot in her posses- sion. According to Sweet, at 4:13 p.m. she was standing at the stairway with two paper bags waiting for 4:15 p.m., the end of the shift. Baker and a security guard approached her. Baker said he had reason to believe she had stolen property, which Sweet denied. Baker asked if she knew she had a coffeepot in her bag. Sweet said yes. Baker said he had reason to believe that she had a stolen coffeepot and asked what was in the bags she was carrying. Sweet replied that obviously he knew more about what was in her bags than she did. Baker repeated his question, whereupon Sweet said her thermos and leftover lunch was in one bag and the coffeepot was in the other bag. Baker said, "Your friend set you up." Sweet said she did not believe that someone would give her a stolen coffeepot to use. Baker asked who gave it to her. Sweet replied, "Well, it seems like you know more about this pot than I do." Baker turned to the security guard and said, "You see, she's not cooperating with us." The guard asked if she knew who gave her the pot. Sweet said yes. He inquired what she planned to do with the pot. She said she was taking it to get an extension cord. He asked her who gave her the pot. Sweet said an engineering technician. The guard asked for the name and Sweet replied, "Cliff Lewis." The guard asked who Lewis 147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was. Sweet said he worked there. Baker said, "No, he doesn't work here." The guard asked what was Lewis doing there if he did not work there. Baker explained that he knew Lewis, that Lewis worked for the Company but in a different division. Sweet said he was in and out of purchase and stores all the time. Baker then told Sweet that she was suspended until further notice. Sweet testified that she did not steal the coffeepot and that she had never intended to use it at home. Rather Lewis had obtained the pot for her and she planned to use it at work to heat water for tea. She admits that there was a coffeepot in her department for the use of department employees but states that it was used for coffee. According to Sweet, she was taking the coffeepot home because she wanted to purchase a longer cord for it. She contends that she needed the pot to ensure that the cord would fit. She then went into an explanation that would be plausible if there was some need to replace the appliance cord, i.e., the short length of the cord that came with the pot and the possibility that all appliance cords would not fit into the cord receptacle built into the pot. However, there is no testimony that the appliance cord that came with the pot was defective and no explanation of why she required a new appliance cord rather than an extension cord. Considering the length of space that she testified that the cord would have to traverse to be plugged into an outlet, I find it difficult to believe that she thought she could find an appliance cord that long and if what she required was an extension cord, then there was no necessity to take the coffeepot home. On August 31, Sweet's suspension was changed to a discharge. Within the week following Sweet's suspension, employee John Towner approached Robert Entwistle, chief steward for the Local 1-5 Standard Oil unit, and told him about Sweet's suspension and discharge. Entwistle telephoned Sweet to inquire regarding her suspension. Sweet related to him what had occurred. Entwistle said he could not do anything until the Company notified her, that she should contact him as soon as she received such notification and he would accompany her to discuss the charges with the Company. Shortly thereafter, Sweet received notification of a time she was to report to the Company. She contacted Entwistle. Entwistle said he would accompany her but he could not do anything until he learned the charges against her. On August 31, Sweet and Entwistle met with Acting Superin- tendent Tom Webster and Baker. The meeting lasted only 5 or 10 minutes. According to Sweet, Webster said he really did not know what was happening, just that he was told to give Sweet her termination papers. Entwistle asked how the decision to terminate Sweet was reached. Webster said he knew nothing about it, he was merely acting superinten- dent on vacation relief, and all he knew was he was instructed to give Sweet her termination papers. Entwistle inquired whether Sweet had been given an opportunity to speak in her behalf. Webster said he knew nothing about it. 2 Both Respondents are parties to the collective-bargaining agreement and are referred to collectively therein as the Union. The contract provides that the Workmen's Committee, comprsed of nine members, is the Union's representative with full authority to bind the Union to wntten agreements with the Company, and to represent the Union in the implementation of the collective-bargaining agreement. Baker, Entwistle, and Sweet went to personnel, where Sweet was to pick up separation pay. Entwistle asked how they arrived at the decision to terminate. The personnel officer denied any knowledge. Entwistle said other people had done worse things and only received a reprimand or a suspension. Following this meeting, Entwistle and Sweet talked to Towner. Entwistle commented that the Company was wrong, that Sweet was apprehended on company property and time, that the Company was just trying to get rid of Sweet. He then asked Sweet about her job performance. She said it was good. Entwistle asked if she wanted to file a grievance. Sweet said she was not a member of the Union. Entwistle said it did not matter, that the Union would represent her if she filed a grievance, whereupon Sweet signed a grievance and also an application for membership in the Union. Entwistle said she would not be liable for union dues until she was reinstated. Local 1-5 processed Sweet's grievance through several steps. The first two steps, according to the collective- bargaining agreement, involved meetings first with the foreman and then with the refinery manager, or appropri- ate designate. The Workmen's Committee represents the grievant at the second step.2 The agreement further provides that if the complaint is not settled at the refinery manager level, the Union may request that the matter be adjudicated by a board of arbitration, comprised of two arbitrators, one selected by the Company and one by the Union. 3 If the two arbitrators fail to reach an agreement, either party may, within 45 days of the date of the written request for arbitration, notify the other in writing that they wish to select a third arbitrator, or the case shall be considered closed. Within 30 days after its hearing of the case, the board of arbitration must hand down a written decision which is final and binding upon both parties. The expense and compensation of the two-party arbitrators are to be borne by the party selecting the arbitrator. The expense of the third member of the board of arbitration is divided equally between the Company and the Union. While the agreement sets forth time limitations, it also provides: "Time limitations specified herein shall ordinari- ly be applicable, but may be extended by mutual agree- ment between the parties to the proceeding to take care of unusual cases, such as illness or other justifiable absences." On September 2, Entwistle filed a written grievance seeking reinstatement and backpay for Sweet. On Septem- ber 7, Baker responded, "Ms. L. D. Sweet was terminated for misconduct, theft of company property, after a thor- ough review of the incident in question. We therefore deny any violation of the Articles of Agreement." On September 10, Local 1-5 requested a second step meeting which was held on September 30. The memorandum of this meeting contained in Sweet's file reads: 4 3 Apparently these arbitrators are usually employees of the respective parties. 4 The Union had access to Sweet's personnel file. 148 OIL, CHEMICAL AND ATOMIC WORKERS INTL. UNION MEMORANDUM OF MEETING WITH OCAW UNION GRIEVANCE P&S--RWE-176 SEPTEMBER 30, 1976 (10:20 A.M. 10:40 A.M.) Present: For the Company - R. W. Davis and L. M. Rich For the Union - R. W. Entwistle Grievance: Unjust termination. Situation: A warehouseman, Miss L. Sweet, had an employee from another division, not her immediate supervisor, order her a coffee pot. After delivery she removed the pot from its cardboard container and put it in a paper bag, which she later stapled shut. Prior to her stapling the bag shut, another employee spotted the coffee pot and bag off in a corner, and, thinking something amiss, contacted his superior. At the end of the day shift as Miss Sweet was walking out to her ride group's car, she was stopped by a plant protection guard & her supervisor and asked what was in the bag. After some hesitation the coffee pot was produced. Miss Sweet contended that she was taking the coffee pot home because she needed a longer cord. Discussion: The Union's recap of the situation agreed in general with the above. However, they contended that Miss Sweet did not try to hide the coffee pot, and that she did need a longer extension cord because the only electrical outlet in her office was on one side of a doorway, while the coffee pot stand was on the other side. They also pointed out that she had not actually left the Company premises and therefore had not really stolen the coffee pot, even if that was her intention. The Union also inferred that her immediate supervisor was not well liked and this was the reason that Miss Sweet asked someone outside of her own department to purchase the pot. The Company pointed out that there was already an unused coffee pot in Miss Sweet's office. She could have easily used that to boil water for her tea or soup. If she wanted a longer extension cord why did she take the pot with her, when the existing extension cord could have easily served as an example. Stapling the bag for a handle also failed to hold much credence because she was carrying the bag cradled in her arm as she left the warehouse. Refuting the comments made about her supervisor, the Company pointed out that he had purchased several items for employees who were working for him. All in all, the evidence was so overwhelming that after considering all aspects of this incident, the Company had no other recourse but to terminate this employee. The Union was informed that they would receive a written response to this effect shortly. During the processing of the grievance, Local 1-5 had access to Sweet's personnel file. Among other things, the file indicated that Sweet's work performance was good and that she was considered eligible for advancement. As to the incident leading to her discharge, the file contained reports of interviews with Sweet and Lewis, and statements from Lewis, Baker, and other personnel. Sweet's and Baker's accounts essentially agreed with Sweet's testimony. Lewis' account agreed that he obtained the coffeepot for Sweet, however, he also claimed, according to an interview report, that before he gave her the pot he specifically elicited her promise to use it only at work and not to take it home. The file reports indicate a management decision that Lewis did not conspire with Sweet to steal the pot but that he abused his purchasing authority when he purchased the pot for her use. The disciplinary action in his case was to reassign him where he would be more closely supervised The file further contains statements from management personnel regarding there being an unused coffeepot in Sweet's working area. On October 8, the Company notified Local 1-5 that it found no violation of the agreement with regard to Sweet's termination. On October 18, Local 1-5 requested that Sweet's grievance be adjudicated by a board of arbitration. On November 11, the Union requested the selection of a third arbitrator. Thereafter the parties agreed upon a third arbitrator and that the arbitration be held on March 28. On March 3, Local 1-5 notified the Company that it did not wish to further pursue the Sweet grievance. General Counsel contends that this step was taken because Sweet was not a member of Respondent. The only evidence of illegal motivation is statements made by Entwistle as to discussions by the Workmen's Committee. About 2 weeks after filing her grievance, Sweet tele- phoned Entwistle and told him she was having difficulty securing unemployment benefits. Entwistle told her she could file an appeal and if she needed any help someone from the Union would assist her in preparing the appeal and at any appeal hearing. Entwistle said a union meeting was coming up and he would bring her case up for discussion. He said there had been talk at the union hall and a couple of guys were not too enthusiastic about her case; but he felt it was a good case, that there were other people who had taken things of greater value, and that he was going to find the records of these cases and use them as an argument in Sweet's case. After several unsuccessful attempts to reach Entwistle, Sweet next talked to him by telephone during the last of September or the first of October. Entwistle said they had met again, a couple of guys on the board s were not so enthusiastic about handling the case. Sweet requested copies of her personnel file. Entwistle said he still had not looked at the file but he would send her copies. He never did send her the copies. Sometime in November, Entwistle told Sweet he was going on vacation and would contact her on his return. When she did not hear from him, Sweet contacted Entwistle. Entwistle said they were not doing anything with Sweet's case, he still did not have copies for her of her personnel file, and that he did not have time to work on her case because of contract negotiations. In January, after contract negotiations were concluded, Sweet again contacted Entwistle. According to Sweet, Entwistle told her they had taken her case to arbitration and were not going to proceed any further. He promised to I This was apparently a reference to the Workmen's Committee. 149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD send her copies of her personnel file. When she had not received the copies after 2 weeks, Sweet again telephoned Entwistle. At that time, according to Sweet, Entwistle told her that the Union had taken her case through two arbitrations and that they were no longer interested in her case. He further said that at a meeting a couple of the guys said that Sweet had worked there for 4 years and never joined the Union, and now she was coming to the Union because she was in trouble. Entwistle further stated that one person said he felt that they should not spend money on a nonmember. Entwistle replied that he felt that a person should be able to work when they file a grievance until the grievance was settled. Entwistle further said they could not do anything about it, they were not interested in taking the grievance further. Sweet asked why Entwistle did not tell her this in the beginning so she could have been paying union dues. Entwistle said he felt they would carry her grievance as far as it had to go in order for her to get satisfaction because he felt her case was very good and the Company was wrong. Sweet further testified: Q. Why did he say your grievance was being dropped? A. He said it was being dropped because they objected to spending union money on a non-union dues paying person. On cross-examination, Sweet testified: Q. Did he tell you how the decision was made not to take your case any further than the two arbitrations it had already gone to? A. The only thing he said was that a couple of the guys on the board felt that they weren't interested in the case because I was a non-paying dues member. Q. Not a member of the union? A. Right - non-paying dues member - because I had signed papers to join the union when I had first contacted him. Q. You were told that it happened at a meeting, that the union decided not to take your case? A. Right, because I was a non-dues-paying mem- ber. Q. Well, did he say that there was a vote? A. No, he said that they were not interested, and they felt that - they didn't feel that they should pay union dues or money to take care of my case because I had never paid any dues. Upon being shown her prehearing affidavit, Sweet testified that in January Entwistle did not tell her that they did not want to spend the money, rather he said they were discussing taking her grievance to a third arbitration. It was her understanding that he was trying to get the Union to proceed to a third arbitration but they were no longer interested. Sweet also testified on cross-examination: Q. Did he say anything more about the discussion of the case other than this comment by one person? 6 Local 1-5's attorney testified that he was consulted, that he reviewed Sweet's file and advised that it was unlikely that the Union could prevail A. Another person said that it costs as much as $800, and someone else said that I'd been there almost four years and I'd never thought about joining a union until I got in trouble. There is no essential disagreement between Entwistle and Sweet as to their conversations except that Entwistle testified that he gave her a general report on what occurred at the Workmen's Committee meeting at which the deter- mination was made as to whether to proceed to arbitration - that there were some members who felt that they should not proceed because she was not a member, others felt that they should proceed regardless, and others expressed an opinion that they should not proceed because there was no way to win. Entwistle further testified that the Sweet grievance was discussed at several meetings of the Workmen's Committee and that in each of the meetings the discussion included some mention of her status as a nonmember of the Union and the cost of arbitration. According to him, at the time the original decision was made to go to third-party arbitration, several committee members, including himself, felt that the Company had acted improperly because Sweet was apprehended before she had physically left the prem- ises and that this weighed very heavily in the initial decision to proceed to third-party arbitration. Nevertheless it was felt by some that since legal counsel was available, it should be utilized. They therefore requested that the union business agent consult with Local 1-5's attorney and specifically inquire as to the question of apprehending a person before the person had left the premises. Thereafter, upon the business agent's report that the attorney had advised that this theory would not be successful, 6 Entwistle initiated a reconsideration of the decision to proceed to third-party arbitration. Again the committee discussed all of the things they had discussed at the previous meeting and also the business agent's report as to the advice of legal counsel. This time, the committee decided not to proceed to third-party arbitration. Conclusion Respondent International contends that it had no in- volvement in the processing of the Sweet grievance and thus has no liability in this regard. I disagree. Both Respondents are recognized as the joint exclusive bargain- ing representative of the employees in the unit involved herein. The delegation of authority to Respondent Local 1- 5 and/or the Workmen's Committee does not relieve Respondent International of its responsibilities as one of the joint exclusive bargaining representatives. The parties stipulated that Entwistle was an agent of Respondent Local 1-5 for the purpose of processing grievances, and the collective-bargaining agreement provides that the Work- men's Committee is Respondent's representative for the purpose of processing grievances and has the authority to bind Respondents to written agreements. Accordingly, I find that Entwistle and the Workmen's Committee are agents of both Respondents. upon arbitration and that he considered success impossible with the particular arbitrator to whom the Union had already agreed. 150 OIL, CHEMICAL AND ATOMIC WORKERS INTL. UNION Essentially, General Counsel argues that since Sweet's nonmember status was mentioned at Workmen's Commit- tee meetings, Respondents' actions were tainted by illegal motivations and thus the refusal to go to third party arbitration was violative of the Act. I do not think it is quite that simple. That these statements were made are factors to be considered but should not be in itself dispositive of the issue herein. What is involved here is a committee decision reached by a majority of nine persons. There is no evidence that this group ever attempted to reach a consensus, or even to individually state the factors which caused each member to vote either for or against third-party arbitration. In a meeting of this kind there is no way to prohibit a recalcitrant member from mentioning whatever he or she wishes, however ill-advised or inappro- priate. One of the things to be considered is whether the statement went unchallenged. Here Entwistle creditably testified that when membership was mentioned, he, as chairman, and others, said that was irrelevant, that the decision should be made on the merits of the matter. Quite significant is the fact that from the beginning, one or two committee members expressed displeasure at the idea of processing a grievance for a nonmember. Neverthe- less, the committee consistently rejected this argument and agreed to process Sweet's grievance. Initially they rejected legal advice that the case was a loser. I credit Entwistle's testimony that probably the most decisive factor in decid- ing to proceed to arbitration was the belief that Sweet could not be guilty of theft, since she was apprehended before she left company property. This is buttressed by the I 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. memorandum of the second step grievance meeting which recites the Union's position "that she had not actually left the company premises and therefore had not really stolen the coffee pot, even if that was her intention." Between the initial decision to proceed to third party arbitration and the decision to withdraw from arbitration, only one different factor was established - the opinion of legal counsel that her apprehension prior to leaving the premises would have no significance in the arbitration. In these circumstances, I find that the decision to withdraw Sweet's grievance from arbitration was not motivated by her nonmember status. Accordingly, I find that Respondent did not thereby violate Section 8(bX I)(A) of the Act. CONCLUSIONS OF LAW 1. Standard Oil Company of California, Western Oper- ations Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Each Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondents have not engaged in the unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 The complaint is dismissed in its entirety. 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. 151