International Association of Heat & Frost Insulators & Asbestos Workers, Local No. 17 (Catalytic, Inc.)

ASBESTOS WORKERS, LOCAL 17 International Brotherhood of Heat & Frost Insula- tors & Asbestos Workers, Local No. 17 (Cata- lytic, Inc.) and Thomas J. Moran. Case 13-CB- 9041 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On September 21, 1981, Administrative Law Judge William A. Gershuny issued the attached Decision in this proceeding. Thereafter, the Gener- al Counsel filed exceptions and a supporting brief, and the Respondent filed 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-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, find- ings, and conclusions of the Administrative Law Judge, as modified below, and to adopt his recom- mended Order. The complaint alleges that the Respondent, a local labor organization, violated Section 8(b)(l)(A) of the Act by failing to process a griev- ance concerning the discharge of four employees arbitrarily or because of the employees' protected activities. The employees had been employed by Catalytic, Inc., an insulation contractor engaged in plant maintenance work for Amoco Chemical Co. They worked in a multicraft unit covered by a "Presi- dents' Agreement" 2 between Catalytic and several I The General Counsel takes the position that. if the Board does not reverse the Administrative law Judge's decision recommending dismissal of the complaint, it should direct a hearing de novo before a different ad- ministrative law judge. In support of this position, the General Counsel repeats the arguments made in a motion previously filed requesting the Administrative Law Judge to disqualify himself. We have carefully con- sidered the General Counsel's contentions and have examined the record in light of his arguments. We conclude that the Administrative Law Judge's conduct of the hearing, resolutions of credibility, and factual findings were not based on bias. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In addition, there is no showing that the Administrative Law Judge's rul- ings resulted in prejudice to the General Counsel's case. Specifically with respect to the Administrative Law Judge's refusals to grant the General Counsel a subpoena for employee Goodwin upon his withdrawal from the case and to grant a continuance for appealing the denial, we note that the General Counsel made a proffer of the testimony expected from Goodwin, and that the testimony is substantially the same as that given by employee witnesses Moran and Maloney. 2 The General Presidents' Project Maintenance Agreement was negoti- ated with certain contractors engaged in continuous plant maintenance, repair, and renovation work According to the agreement, its administra- 264 NLRB No. 99 International building trades unions, including the Respondent's International organization. The Re- spondent was not a party or signatory to the agree- ment, and its role in connection with the bargain- ing unit is not clear.3 The contract provided for an onsite representative to represent all trades on the jobsite and to participate at the first step of the grievance procedure. The Administrative Law Judge recommended that the complaint be dismissed, concluding that the Respondent was not the bargaining representa- tive of the employees and had no duty of fair rep- resentation to them.4 Alternatively, he concluded that, even assuming the Respondent had a duty of fair representation to the employees, it adequately discharged its responsibility. In adopting the Ad- ministrative Law Judge's recommendation that the complaint be dismissed, we rely on his alternative conclusion and do not pass upon the Respondent's representative status. When Catalytic decided to terminate the four employees, it contacted the Respondent, and the Respondent's business agent came to the work- place. He discussed the matter with representatives of Catalytic and Amoco. Catalytic was concerned about productivity of insulators on a special job the night before, which had taken many more work hours than management had anticipated, and with Amoco's dissatisfaction with Catalytic's perform- ance. Management representatives were also dis- pleased with previous productivity of the particular employees discharged and their failure to abide by safety rules, and with the absence record of em- ployee Goodwin. The business agent, who had many years of experience as an insulator, examined the previous night's work and determined that the job should have taken considerably less time. He also checked attendance records to review the ab- sence rate of Goodwin. He then asked Catalytic to notify the employees of their discharge, and to call them in on the following Tuesday, the first work- day after a holiday weekend. He also arranged for showup pay.5 tion and interpretation was the "responsibility and sole prerogative of the General Presidents' Committee." I Local labor organizations had some functions under the contract, particularly participation with the International representative at step II of the grievance procedure. In practice, the Respondent referred employ- ees to bargaining unit jobs, visited the workplace, and investigated some employee complaints On one occasion it notified the International of a jurisdictional dispute between the insulators and another trade, and in- formed the insulators of the International's action 4 The General Counsel has excepted to, these conclusions and argues that provisions of the bargaining contract and bargaining history establish that the Respondent is the recognized collective-bargaining representative of the employees involved. 5 Over the holiday weekend the employees telephoned the business agent to discuss their discharges. They were dissatisfied with his re- sponse 735 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The business agent returned to the job on Tues- day and inspected the work again. He discussed the reasons for the discharges with the employees. When employee Moran, the Charging Party, said he would take the discharges to the "Trades Board," the agent reminded him the job was not under local jurisdiction, but under the Presidents' Agreement, and suggested he could get in touch with the International representative who was in charge. 6 The business agent later reported the situ- ation to the International. 7 On the evidence as a whole we find no basis for the General Counsel's contentions that the Re- spondent handled the discharges in a perfunctory or arbitrary manner, or that its conduct was influ- enced by hostility to the Charging Party's activity within the Union.8 Nor do we agree with the Gen- eral Counsel that the Respondent's conduct amounted to "blind" acceptance of the Employer's position and displayed an indifference to the inter- ests of the discharged employees. Rather, we con- clude that the Respondent acted within the area of discretion permitted a representative. Furthermore, it appears that the Respondent had a legitimate concern that Amoco's dissatisfaction with the insu- lation work and Catalytic's performance might result in the loss of all insulation jobs. We conclude the evidence does not support a finding that the Respondent violated Section 8(b)(l)(A), 9 and we shall dismiss the complaint. 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 complaint be, and it hereby is, dismissed in its entirety. 5 There is conflict between the testimony of the employees and the business agent as to whether the employees asked the agent to telephone the International representative. We do not consider this conflict signifi- cant to our decision I Subsequently, the International arranged for meetings under the grievance procedure, and the discharges were upheld. 8 Charging Party Moran and the business agent had been rivals in in- ternal union politics for many years. and Moran had challenged the in- cumbent union administration. 9 Even assuming the discharged employees requested the business agent to telephone the International representative and he refused, in our view that does not warrant a finding that the Respondent violated a duty of fair representation in the circumstances of this case. DECISION STATEMENT OF THE CASE WILLIAM A. GERSHUNY, Administrative Law Judge: A hearing was held on August 4-6, 1981, in Chicago, Illinois, on complaint alleging a violation of Section 8(bX1) of the National Labor Relations Act, as amended. The sole issue is whether Respondent, a Local Union, breached its duty of fair representation in connection with the investigation and prosecution of grievances of four members who were discharged while working under a labor contract to which the Local Union was not a party. Upon the entire record, including my observation of the witnesses' demeanor, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The complaint alleges, the answer admits, and I find that Catalytic is an employer engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Respondent Local Union generally is a labor organi- zation within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICE The relevant facts are undisputed. The labor contract under which the work in this case was performed is 1 of 300 outstanding "General Presi- dents Maintenance Contracts," negotiated with certain companys by the general presidents of the 13 building trade unions and administered by the General Presidents' Committee. Local unions are not parties or signatories to such agreements. The contract, in article I, creates a bar- gaining unit separate and distinct from all others. It does not provide for separate job stewards for each trade, but rather creates, in article VII and IX, the position of "on- site representative" to be elected by and to represent all the trades at the jobsite. In this respect, the desire of the parties for a single and uniform interpretation of the con- tract is expressly declared in the covenant provisions of the contract. The contract provides for a three-step grievance procedure, followed by final and binding arbi- tration in the event no prior agreement is reached on a grievance. Step one, an informal step, provides for dis- cussions between the grievant and/or onsite representa- tive and a supervisor. The Local Union has no involve- ment at this step. Step two provides for discussions be- tween an International Union official, a local union rep- resentative, and a management representative. Step three is conducted at the International union level with no local union involvement. Significant also is the absence of any time limit for the presentment of a grievance at step one or the moving of the grievance from step one to step two. All employees, including the four in this case, were given copies of the contract to read when they first re- ported to the job. Employee Moran admitted to his fore- man that he knew "all about" that contract. As a former local union vice president, he had obtained a copy of the contract months before and kept it at his home. He knew of the responsibility of International Union Vice Presi- dent O'Brien to administer the contract and of the Local 736 ASBESTOS WORKERS, LOCAL 17 Union's lack of authority in this regard as early as April 1980, when a jurisdictional dispute erupted between the laborers and insulators. At that time, he was informed that the Local Union business agent could do nothing about it and that O'Brien would resolve it and had, in fact, already resolved it. On May 23, 1980, Catalytic, a contractor performing maintenance work at Amoco's Joliet, Illinois, facility, de- cided to discharge four insulators for nonproduction and other reasons. Respondent Business Agent Drury was in- formed, went to the facility, spoke with representatives of Catalytic and Amoco, looked at the allegedly defec- tive work, and requested that Catalytic call the men in on Tuesday, May 27 (the next scheduled workday), give them 2 hours' reporting pay, and informed them of the decision. This was done and the men were discharged on May 27. Drury attended the Tuesday meeting, again inspecting the work. He advised the three of the four insulators who attended that he could do nothing for them and that they should contact International Vice President O'Brien in New Orleans concerning any grievance. The insula- tors stated that they would not do so. Within 72 hours, Drury telephoned O'Brien, advising him of the four dis- charges and, in response to an inquiry from O'Brien, ex- pressed .the opinion that the insulators had without justi- fication claimed 76 hours for a job that should have taken 16. O'Brien stated that he would meet with the in- sulators as soon as possible to hear their stories. Due to O'Brien's illness, however, that meeting did not take place until August 6, at which time the insulators admit- tedly had a full opportunity to relate their version of the events. In the meantime, by letter dated July 24, the Local Union reminded O'Brien of the pendency of the grievances. A step-two grievance meeting was conducted in early October with O'Brien, Drury, three of the four insulators, and representatives of Catalytic and Amoco. When no agreement was reached, the grievance was re- ferred to step three, where the discharges were unani- mously upheld. Throughout the hearing, there was considerable confu- sion as to the issues in this case. Much of that confusion, on the part of the employees at least, stemmed from the fact that, originally, unfair labor practice charges also were filed against the Employer, under which the em- ployees sought to litigate the lawfulness of the discharges and sought full backpay and reinstatement. That charge, however, was withdrawn. In addition, there was much confusion on their part as to the nature of the grievance proceedings which were conducted to finality in 1980. There was employee testimony that no grievance had been filed or authorized, that the grievance was filed with the National Labor Relations Board, and that the step two meeting involved only a union claim and not the grievances of the employees. And, throughout, coun- sel for the General Counsel appears to have ignored the contract itself, electing not even to offer it in evidence until an inquiry was made by the court. It is useful, at this time, to restate, as I stated a number of times during the hearing, what is not at issue here. (a) There is no allegation and no contention by the General Counsel that the International Union breached the duty it owed to the four employees to prosecute their grievance. Thus, there is no issue relating to the ab- sence of the onsite representative at step one, the speed with which O'Brien took the grievance to step two, the adequacy of his investigation, and the manner in which he represented the grievants at step two or three. (b) There is no allegation and no contention by the General Counsel that the Employer wrongfully dis- charged the four employees. The correctness of that de- cision cannot now be the subject of review and, of course, reinstatement and full backpay are not remedies presently available. (c) There is no allegation and no contention by the General Counsel that the Local Union caused the Em- ployer to discharge the four employees or was somehow involved in the discharge decision. (d) There is no allegation and no contention by the General Counsel that the Local Union, under its consti- tution and bylaws, infringed upon the rights of its dues- paying members. Such issues would properly be raised in other forums. The single issue presented here is a legal one-wheth- er Local Union 17 had an obligation to investigate and prosecute grievances on behalf of members who, at the time, were working in a separate and distinct bargaining unit established under an International Union contract to which the Local Union was not a party or signatory and under which the Loacl Union was delegated or assigned no grievance function except a nominal one at step two. The contention of the General Counsel necessarily is a narrow one, in light of his admission that the handling of the grievances by the International Union was not im- proper. It is that the Local Union, through Business Agent Drury, breached its duty of fair representation by failing to conduct an adequate and impartial investigation and by failing to timely notify O'Brien of the pendency of the grievances so that step two of the contract proce- dures could be initiated. The General Counsel contends that Drury's actions were improperly motivated because one of the grievants had unsuccessfully run against him in a recent Local Union election. The sole relief sought here is the posting of a notice and backpay from the date of the discharges, May 27, 1980, to the date on which the Local Union gave notice of the grievances to the In- ternational Union. As found above, that date is May 30, 1980, when telephonic notice was given O'Brien by Drury. For the reason set forth below, I conclude that the complaint must be dismissed. First, it is, of course, elemental that, for a duty of fair representation to exist, the respondent union must be the bargaining representative of the affected employees. Mir- anda Fuel Company, Inc., 140 NLRB 181 (1962), enforce- ment denied 326 F.2d 172 (2d. Cir. 1963). That Respond- ent here was not the bargaining representative of the em- ployees working under the General Presidents' Mainte- nance Agreement is a conclusion compelled by the plain language of the contract itself. The Local Union is not a party to the contract; the contract establishes a bargain- ing unit separate and distinct from all others which might exist under contracts negotiated by the Local 737 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union; and it designated a single job steward to repre- sent all employees on the job regardless of their craft, and it delegated step-one grievance-handling responsibil- ities to that individual. Second, Drury's "involvement" at step one cannot, as a matter of fact, create such a duty of fair representation. As early as April when there existed a jurisdictional dis- pute on the jobsite, the employees had actual knowledge that dispute handling on the job was the responsibility of International Union Vice President O'Brien and not any Local Union official. The four employees again were specifically advised by Drury on May 27 to contact O'Brien concerning any grievances and they refused to do so. Nor would such a theory find support in agency principles which clearly teach that the doctrine of appar- ent authority has no application whatever where, as here, the contract provision and the Local Union's lack of authority are known to and are comprehended by all persons involved. 3 Am. Jur. 2d. § 75. Further, it would be an anomaly to fault an agent's performance (that of the Local Union) where the principal's performance (that of the International Union) admittedly is faultless. Third, even assuming a duty on the part of the Local Union to fairly represent employees on the Amoco job- site, Respondent here adequately discharged its responsi- bility. The uncontroverted (and credible) evidence is that Drury's investigation consisted of two separate inspec- tions of the work performed and discussions with knowl- edgeable representatives of both Amoco and Catalytic and with the employees involved; that Drury contacted O'Brien within 72 hours of the conclusion of step one; that O'Brien, at steps two and three, conducted his own investigation (as the contract specifically contemplates) and gave the individuals full opportunity to present their version of the events (an investigation and prosecution which the General Counsel concedes satisfied the bar- gaining representative's obligation to the four employ- ees); and that Moran's efforts to seek Local Union office and the nominal (and perhaps even undisclosed) support of his candidacy by the other three discharged employ- ees resulted in no disparate treatment whatever insofar as referral (both before and after the discharges) or griev- ance handling was concerned. It also is significant that none of the four employees testified even as to their belief that the Local Union was unlawfully motivated in- sofar as their discharges were concerned and that none suggested what evidence might have been revealed had Drury conducted any other kind of investigation. Indeed, it is doubtful that the General Counsel presented even a prima facie case of liability, given the extremely damag- ing testimony which he offered without qualification from Catalytic Superintendent Troyner and Amoco Maintenance Supervisor Ellson as to the four employees' record of nonproduction and disregard of safety rules. Under the circumstances here, it would be quite difficult to perceive what legal harm resulted from the Local Union's actions, where, as here, the General Counsel does not fault the International Union's grievance investi- gation and its concurrence at step three with the dis- charge decision. 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: ORDER' It is ordered that the complaint be, and the same hereby is, dismissed. 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 find- ings, 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 be deemed waived for all purposes. 738