Groves-Granite

GROVES-GRANITE Groves-Granite, a Joint Venture and Leroy C. Baublitz Carpenters Local No. 2205, United Brotherhood Carpenters & Joiners of America and Leroy Baublitz. Cases 19-CA-8454 and 19-CB-2640 of C. September 27, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 19, 1977, the National Labor Relations Board issued its Decision and Order' in this proceeding in which it found that the Respondent Union had violated Section 8(b)(IXA) of the Act by failing to adequately represent Leroy C. Baublitz, the Charging Party, after his discharge from Chaussee Corporation. In setting forth certain remedial provi- sions, the Board additionally adopted the Adminis- trative Law Judge's recommendation that it retain jurisdiction over this matter in order to reconsider the remedy and provide further appropriate affirma- tive provisions should those specified prove ineffec- tive.2 On July 18, 1977, the General Counsel filed his motion to reopen the proceeding for the issuance of a supplemental decision and order. The General Counsel alleges that the Respondent Union has continued in its failure to represent Baublitz and that the Respondent Union should therefore be ordered to make Baublitz whole for any loss of earnings he has suffered as a result of his discharge from Chaussee Corporation.3 Respondent Union filed an answer to the General Counsel's motion in which it requests that the Board issue a supplemental decision and order discharging it from any further obligation to pursue Baublitz' grievance against Chaussee Corporation, or, in the alternative, to advise it as to the proper course of action to take in an effort to comply with the Board's original order. 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. In its Decision and Order, the Board ordered the Respondent Union to "promptly request of Chaussee Corporation that it submit to grievance proceedings concerning the propriety of Chaussee's discharge of Leroy C. Baublitz." The General Counsel's motion i 229 NLRB 56 (1977). 2 In this regard, the Board determined that it would be appropriate to retain jurisdiction in order to entertain a motion to reopen the proceeding, after exhaustion of the grievance process, to resolve any questions of economic detriment occurring to Baublitz by reason of the Respondent Union's failure to represent him. 232 NLRB No. 58 and supporting documents show that the Respondent Union has requested Chaussee Corporation to consider a grievance concerning Baublitz' discharge and to take such grievance to arbitration. However, Chaussee Corporation has refused to entertain such requests, claiming that the discharge is not cogniza- ble under the grievance and arbitration process in the applicable collective-bargaining contract. Further- more, additional documents reveal that Respondent Union agrees with the position taken by Chaussee Corporation. Thus, no grievance has been processed or is currently being considered concerning the propriety of Baublitz' discharge under the applicable bargaining agreement. In its answer to the General Counsel's motion, Respondent Union contends that it pursued Bau- blitz's discharge with Chaussee Corporation, but that its overtures to Chaussee Corporation have been rejected. Thus, Respondent Union argues that it has fulfilled the obligation imposed on it by the Board, and that it should be released from any further obligation, both legal and monetary, to pursue this matter further, as there has been no determination that Baublitz' discharge was, in fact, unlawful. As the Board indicated in its initial Decision, there appeared the possibility that the Order then issued would not make Baublitz whole for Respondent Union's unlawful refusal to represent him concerning his discharge from Chaussee Corporation. It was for this reason that the Board determined to retain jurisdiction over this matter. The Board's Order did not merely involve making a request of Chaussee Corporation to submit to grievance proceedings and, in the event it refused such proceedings, for the Union to cease its efforts on behalf of Baublitz. Rather, it contemplated that the entire grievance procedure outlined in the applicable bargaining agreement be followed to its conclusion, with the Respondent Union under the affirmative duty to take whatever steps were necessary to effectuate the Board's Order. Insofar as the papers before us show, the Respondent Union has taken no effective steps to fulfill its obligation of fair representation so as to remedy its unlawful conduct with respect to Bau- blitz; such as, for example, bringing a proceeding under Section 301 of the Act in order to obtain a determination of the contractual propriety of Bau- blitz' discharge. Failing in this, Respondent Union cannot now be heard to claim that there has been no determination that the discharge of Baublitz was unlawful. 3 In the alternative, the General Counsel requests that Respondent Union be ordered to proceed to take Baublitz' grievance to arbitration In view of our disposition of the proceeding herein, we find it unnecessary to rule upon the alternative motion. 381 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore, contrary to the Respondent Union's agreement with Chaussee Corporation that the discharge is not cognizable under the contract, the Administrative Law Judge noted in his Decision that no contention had been made that the discharge was not a suitable matter for the grievance and arbitra- tion process of the contract. As the Board found in its original Decision, it was the Respondent Union's unlawful denial of fair representation which created the indeterminate situation concerning Baublitz' status. In these circumstances, both the equities and the proper and effective realization of the statutory policy require that the Respondent Union bear the burden of the ambiguities which it has created by its illegal acts. 4 Consequently, we shall order that it make Baublitz whole for any loss of earnings he may have suffered as a result of his dicharge from Chaussee Corporation on or about October 30, 1975, less net interim earnings during such period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB No. 117 (1977),5 from the time he requested the Union to present a grievance on his behalf concerning that discharge until the date on which Baublitz obtained employment at Groves-Granite. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Union, Carpenters Local No. 2205, United Brother- hood of Carpenters & Joiners of America, Wenat- chee, Washington, its officers, agents, and represen- tatives, shall: I. Cease and desist from: (a) Failing to represent Leroy C. Baublitz or any other employee adequately in grievance matters, by disparaging the cause to management officials; by abandoning interest in the grievance based upon considerations that are arbitrary, in bad faith, or discriminatory; or by giving misleading information to the aggrieved employee concerning the Union's position in the matter. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make Leroy C. Baublitz whole for any loss of earnings he may have suffered as a result of his discharge from Chaussee Corporation on or about October 30, 1975, less net interim earnings, with interest on the amount of such loss, in the manner set forth in this Supplemental Decision, from the time Baublitz requested the Union to present a grievance on his behalf concerning that discharge until the time he obtained employment at Groves-Granite. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its offices, meeting halls, and hiring halls copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by an authorized representative of Carpenters Local No. 2205, United Brotherhood of Carpenters & Joiners of America, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members 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. (d) Furnish the Regional Director for Region 19 signed copies of said notice for posting by Chaussee Corporation, if willing, in places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. 4 See Local 485, International Union of Electrical, Radio & Machine Workers, AFL-CIO (Automotive Plating Corp.), 170 N LRB 1234 (1968), and 183 NLRB 1286(1970). 5 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). s In the event that this 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." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail to represent Leroy C. Baublitz or any other employee adequately in grievance matters, by disparaging the cause to management officials; by abandoning interest in the grievance based upon considerations that are arbitrary, in bad faith, or discriminatory; or by giving misleading information to the aggrieved 382 GROVES-GRANITE employee concerning the Union's position in the matter. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL make Leroy C. Baublitz whole for any loss of earnings he may have suffered as a result of his discharge from Chaussee Corporation on or about October 30, 1975, less net interim earnings, with interest on the amount of such loss, from the time Baublitz requested us to present a grievance on his behalf concerning that discharge until the time he obtained substantially equivalent employ- ment. CARPENTERS LOCAL No. 2205. UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA 383