International Brotherhood of Boilermakers, Local 132

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, LOCAL 132 International Brotherhood of Boilermakers , Iron Ship- builders, Blacksmiths, Forgers & Helpers, AFL- CIO, Local 132 (Kelso Marine, Inc.) and Paul Ran- dle Morgan. Case 23-CB-1608 September 4, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On May 9, 1975, Administrative Law Judge Lowell Goerlich issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, General Counsel filed exceptions and a supporting brief, and Respondent filed a reply 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 and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent , International Brother- hood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers & Helpers, AFL-CIO, Local 132, Galveston, Texas , its officers, agents, and representa- tives, shall take the action set forth in the said recom- mended Order, except that the attached notice is sub- stituted for that of the Administrative Law Judge. ' The Respondent and General Counsel have excepted to certain credibil- ity findings made by the Administrative Law Judge It is the Board's estab- lished policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing his find- ings. We have substituted the attached notice for the notice recommended by the Administrative Law Judge in order to conform the notice to his Conclu- sions of Law and recommended Order, adopted herein. APPENDIX 119 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties were permitted to introduce evidence it has been decided that one of our representatives informed an employee that the Union would not arbitrate his discharge grievance because he was not a union member and that be- cause of this misconduct we violated the National Labor Relations Act, as amended. WE WILL NOT inform employees that we will not arbitrate employees' grievances because they are not members of our Union. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS & HELPERS, AFL-CIO, LOCAL 132 DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: The charge filed by Paul Randle Morgan on December 20, 1974, was served on the International Brotherhood of Boil- ermakers, Iron Shipbuilders, Blacksmiths, Forgers & Help- ers, AFL-CIO, Local 132, the Respondent herein, by regis- tered United States mail on December 23, 1974. A complaint was issued on January 17, 1975, in which it was charged that the Respondent had refused to arbitrate the discharge of Paul Randle Morgan on December 14, 1974, under the provisions of a contract between the Respondent and Kelso Marine, Inc., herein called the Employer, be- cause Morgan was not a member of the Respondent Union, in violation of Section 8(b)(1)(A) of the National Labor Relations Act, as amended, herein referred to as the Act. The Respondent filed a timely answer denying that it had engaged in any of the unfair labor practices alleged. The case came on for trial at Galveston, Texas, on Feb- ruary 20 and March 19, 1975. Each party was afforded a full opportunity to be heard, to call, examine, and cross- examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. 220 NLRB No. 22 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT, I CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE EMPLOYER Kelso Marine, Inc., is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Texas . At all times maten- al herein, the Employer has maintained its principal office and place of business in Galveston, Texas, where it manu- factures and sells prestressed concrete products. During the past 12 months, a representative period, the Employer sold products valued in excess of $50,000 to companies each of which during the same period received in excess of $50,000 for the performance outside the State of Texas of services for customers who also are located outside the State of Texas. The Employer is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED Respondent is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES First: The Respondent in its answer denied that on or about December 17, 1974, and at all times thereafter, Re- spondent has refused to arbitrate a grievance arising out of the discharge of Paul Randle Morgan by Kelso Marine, Inc., on December 11, 1974, under the provisions of the collective-bargaining agreement between the Employer and the Respondent, because Morgan was not a member of the Union. The Respondent does not contest the fact that it has not processed Morgan's grievance through arbi- tration but, by affirmative defense , it asserts that this fail- ure is attributable to its learned conviction that the griev- ance could not be won in arbitration rather than to Morgan's nonmembership in the Union. Thus the issues are joined.2 The matter of credibility is a threshold consideration. Morgan claims that Union Steward Nathan Gray Adams told him that the Respondent would not arbitrate his dis- charge grievance because he was not a union member. 1 The facts found herein are based on the record as a whole and the observation of the witnesses . The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits , with due regard for the logic of probablility, the demeanor of the witnesses, and the teachings of N L R B. v. Walton Manufacturing Company & Loganville Pants Company, 369 U.S. 404, 408 (1962). As to those witnesses testifying in con- tradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or be- cause it was in and of itself incredible and unworthy of belief All testimony has been reviewed and weighed in the light of the entire record No testimo- ny has been pretermitted. In this respect Morgan testified that on several occasions after his discharge, during the period in which Adams was handling his grievance, Adams informed him of this cir- cumstance in substantially these words on at least three occasions: Well, if it gets down to arbitration . . . they won't take it to arbitration. . . . They're either going to take a man's case and fight it and maybe win it; and take a man that ain't been in the union for a certain amount of years and go down there and lose it. . . . They just won't fight your case. ... it would not go to arbitration because you're not a member of the union... . ... they wouldn't take it to arbitration because [you're] not a member of the union, and fight it and win [your] case... . They will not take your case to arbitration, and go down there and fight for a man that ain't in the union and win his case, and fight for somebody that is in the union and maybe lose it. ... it wouldn't go to arbitration . . . [b]ecause [you weren't] a member of the union. If you were in the union, we could send you down to the union hall and send you out on a job, but you are not in the union, and that's what's going to make it so rough. They just won't go down there and fight for a man that's not in the union. ... if [you were] in the union there wouldn't be no problem... . If you were a member of the union, then, we could go right on with this thing. Martha F. Morgan, Morgan's wife, was present at Ad- ams' home on December 11, 1974, when Morgan's dis- charge grievance was discussed between Morgan and Ad- ams. Adams' wife was also present. Mrs. Morgan overheard Adams say that "it would not go to arbitration because he [Morgan] wasn't a member of the Union. That if he was . . . a member of the Union, that he [Adams] could go ahead with it. But he was pretty sure he [Adams] could get him off with a three-day layoff and have him back to work by Tuesday morning." Adams added that when Morgan "got him back on, to join the Union. Make 2 Counsel for the Respondent stated for the Record. ... we believe that the nature of [Morgan's] conduct during that peri- od of time, beginning in September , and ending . . with his discharge is so outrageous that no arbitrator under any standard of industrial justice would contemplate even the possibility of putting him back to work. For these reasons, we decline to arbitrate the case and continue to decline to arbitrate the case. . . We do take the position that we will not process this case to arbitration because it is devoid of merit. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , LOCAL 132 121 sure he joined the Union." 3 The Respondent did not call Adams' wife for testimony. It justified this omission: We feel that if we're going to lose the case because we don't bring our wives in to back us up, we'll just have to take that chance. Mrs. Adams has been burdened enough by this Charging Party coming to their home repeatedly in his usual manner, and we will not burden her further. The absence of Mrs. Adams as a witness does not contri- bute to a favorable finding of credibility on Adams' part. Mrs. Morgan also testified that after Morgan returned from his last grievance discussion with Adams he remarked that "it wouldn't go to arbitration because he wasn't a member of the Union." Thereafter Morgan immediately went to the Board's Regional Office where a charge was filed on December 20, 1974. The subject of filing a charge had come up several times in the discussions between Adams and Morgan which cov- ered a period from December 11 to December 19, 1974. Morgan referred to this procedure as "Step II." At the final meeting between Adams and Morgan, according to Ad- ams, he was given the "impression" that Morgan was "going to file a charge against the Company";4 that he thought that "the company was unjust in discharging him"; and that "they're going to pay me, goddamn it, I'm going to go down and file charges on this." 5 According to Morgan, he asked Adams whom he should file charges against and Adams answered that "it would be against the company." After Morgan appeared at the Board's Regional Office and described what occurred, a charge was filed, to wit: "Since on or about December 19, 1974, the above-named labor organization, by its officers and agents, restrained and coerced Paul Randle Morgan by the failure of said labor organization to fairly and impartially represent him in his dispute with Kelso Marine, Inc." Morgan had had no intention of filing a charge against the Union when he entered the Board's Office. On the basis of these facts (demeanor also considered), it is concluded that Adams did inform Morgan that the Re- spondent would not process his discharge grievance in ar- bitration because he was not a member of the Union. Fac- tors which in addition to demeanor are persuasive in this respect are: (1) Morgan described to the Board's agents (as he later did in his testimony) details of the incident before he had any idea that he had a claim against the Union, thus obviating any inference that he was lying to make a claim against the Union; (2) it is unlikely that Morgan would have gone to the Board at all had arbitration been in the offing; (3) Mrs. Morgan was a credible corroborative witness; and (4) Mrs. Adams did not show. While Adams was a good steward and worked diligently 3 Adams testified, "His wife brought up the fact that if Red gets you back on, you better goddamn well join that Union " 4 Adams testified that Morgan "was wanting to go to the NLRB before [he had even heard the grievance in Step I " Adams testified, "He had the impression that the Company had really given him a real raw deal on this thing and that he hadn't had enough slips in his file to cover for the disciplinary action that was taken on him And in that way he was going to go down and file charges on the Company" in Morgan's cause, nevertheless, as between Morgan and the Respondent, he chose to cover up. Adams' statement to Morgan that the Union would not process his grievance through arbitration because he was not a member of the Union restrained and coerced em- ployees in the exercise of the rights guaranteed by Section 7 of the Act, and the Respondent thereby violated Section 8(b)(1)(A) of the Act. Cf. Port Drum Company, 170 NLRB 555 (1968). Second: It is patent as found above that Adams' remark to Morgan constituted an unfair labor practice; however, the difficult question remains as to whether the Respondent's refusal to arbitrate Morgan's grievance was actually based in whole or in part on his nonunion status. The Respondent argues that the refusal to arbitrate was based solely on a decision that the grievance lacked merit and thus could not be won in arbitration. This was the point of view expressed by Union Business Manager and Financial Secretary Kohlus Karl Knapp who, according to his testimony, was solely responsible for the decision not to arbitrate. Knapp first became aware of Morgan's problem on De- cember 12, 1974. His notes reveal: "V. V. Gonzalez, the foreman, and Morgan got into a beef on Wednesday, De- cember the 11th, 1974. And Morgan told Gonzalez that he didn't think that he wanted to work any longer for .. . blank, blank, blank 6 like Gonzalez,? and they both went to the office, and the Company terminated Morgan." 8 Ad- ams reported that "Morgan had given Gonzalez a good cursing and had plainly stated that he did not want to work for an individual of the description that he had used. And that, as a matter of fact, Morgan's temper was up pretty good and they had to take him out of the office because he was using profanity in the office and had threatened to whip everyone that was in the office." Adams also reported that Morgan had repeated the statement in the Company's office and said that he "had quit and did not wish to con- tinue working for the Company." On Monday, December 16, 1974, Knapp conferred with Personnel Director Linn Fink by telephone. Knapp asked Fink to give Morgan another opportunity and explained that anyone can get "hot-headed, that it was just one of the typical characteristics of an individual who works in this industry, and that they would be losing a good employee, that they needed him"; that Fink had `just come from recruiting, and it didn't make sense to go a hundred or two 6 Knapp said he used blanks in deference to his female secretary who sometimes reviewed his notes. 7 Morgan was a welder On December 11, 1974, Morgan and some other employees were working in the "back end" of a barge. Gonzalez came to each employee When he approached Morgan, Morgan had just finished a cigarette. Gonzalez said that "we can't have this stopping The work has got to go on " Morgan replied, "Are you trying to say I'm not doing my job9" Gonzalez answered, "That's the way it looks " Morgan responded, "If that's the way you feel about it, I don't think I want to work for a chicken s- mother f- like you." (Counsel for the General Counsel, Robert S Breaux, has aptly and delicately paraphrased this language in his brief, to wit "Morgan told Gonzalez he did not feel he wished to work for a person who he described as an incestuous copulator associated with the excrement of certain barnyard fowls " Of this language Knapp said, "it's more the vernac- ular in this type of industry." 8 According to Walter A. Hammann III, personnel assistant, he informed Morgan, "You're being terminated for calling V V. a chicken s- mother f-" 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hundred miles recruiting people and run off those that you had here working for you locally." Fink's response was negative. Fink called Knapp's attention to the fact that Morgan had been "called up . . . in the preceding Septem- ber . . . [and] warned at that time that if there was another incident, that it would be his job, he would be terminated." Prior to Fink's return on Monday,' Knapp had talked to Personnel Assistant Walter A. Hammann III, who among other things informed him that Morgan "did use this lan- guage in the presence of Mr. Hammann, Mr. Knight [a supervisor], Mr. Gonzalez, and Mr. Adams in the Company's offices, and that Mr. Adams went so far as to take him outside and cool him down because he was going to whip everybody that was in the office." On December 20, 1974, Adams and Morgan met with company representatives after which the Company refused to erase Morgan's discharge.10 Knapp did not attend. Thereafter Knapp learned from Fink that the Company was going to stand on its decision; that if the Union "felt like that [it] could win the case in arbitration, all he could tell [Knapp] to do was to exercise [his] rights under the agreement." Adams also reported to Knapp his lack of suc- cess in the meeting involving Morgan's grievance. After Knapp's final communication from Fink, Knapp resolved not to arbitrate Morgan's grievance. Knapp ex- plained: Based on this contractual agreement, based on the allegations, based upon my investigation with the Company's representatives, and my conversations with the Union steward, I felt that Mr. Morgan's case was completely devoid of any merit to proceed to arbi- tration... . Knapp denied that Morgan's nonunion status entered into his decision not to arbitrate. His denial is credited. There is no credible evidence that Knapp was cognizant of the representations on the subject of arbitration which Adams communicated to Morgan. Nor is there any credi- ble evidence that the Union pursued a policy which denied access to the arbitration provisions of the contract for non- union members. Finally, while there may be honest differ- ences of opinion as to the strength of Morgan's claim to reinstatement, the evidence does not support a conclusion that Knapp's decision was so preposterous and lacking in factual support as to imply discriminatory motives. Thus it is found that the Respondent's failure to arbitrate was not grounded on Morgan's nonmembership in the Union. Fair representation is the duty placed upon the Union and an honest evaluation of the facts and the probabilities for suc- cess in a matter involving arbitration satisfies that duty. Knapp met that duty; for this he cannot be faulted even though others may have, on the same set of facts, come to a different conclusion. The Supreme Court has said in Ford Motor Company v. Huffman, 345 U.S. 330, 337, 338 (1953): Their [labor organization] statutory obligation to rep- resent all members of an appropriate unit requires 9 Fink had been away from Galveston at the time of Morgan 's discharge 10 Fink's final remarks at this meeting were, "that the company had lost a damn good welder , and that he had lost his job, and that we had both lost." them to make an honest effort to serve the interests of all of those members, without hostility to any... . The bargaining representative, whoever it may be, is responsible to, and owes complete loyalty to, the inter- ests of all whom it represents. . . . A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion. The Respondent, in considering whether Morgan's griev- ance ought to have been arbitrated by its agent Knapp, did not offend these criteria. The words from Stanley v. General Foods Corp., 508 F.2d 274 (C.A. 5, 1975), are apposite: The union is not under an absolute duty to pursue a grievance merely by proof that the underlying griev- ance was meritorious. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effec- tuate the policies of the Act forjurisdiction to be exercised herein. 3. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respon- dent engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. 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 11 The Respondent International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers & Help- ers, AFL-CIO, Local 132, Galveston, Texas, its officers, agents, and representatives, shall: 1. Cease and desist from informing employees that it will not process their grievances in arbitration because they are not union members. 11 In the event no exceptions are filed as provided by Sec 10246 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 he deemed waived for all purposes INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, LOCAL 132 123 2. Take the following affirmative action which will ef- fectuate the purposes of the Act: (a) Post at its business office and furnish to Kelso Ma- rine, Inc., Galveston, Texas, for posting copies of the at- tached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 23, 12 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 23, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dis- missed insofar as it alleges violations of the Act other than those found in this Decision.