Oil Workers Local 4-23 (Gulf Oil)

OIL WORKERS LOCAL 4-23 (GULF OIL) Oil, Chemical and Atomic Workers International, Union, Local Union No. 4-23 , AFL-CIO ,and Gulf Oil Corporation. Case 23-CB-2779 28 February 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 7 December 1983 Administrative Law Judge William A. Gershuny issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Employer-Charging Party and the General Counsel filed briefs in response. The Board has considered the decision and the record' in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings 2 and conclusions3 and to adopt the recommended Order as modified.4 1. We agree with the judge's conclusion that the Respondent violated Section 8(b)(1)(A) by expel- ling Supervisor Rhodes based on Rhodes' previous arbitration testimony while still an employee5 which had supported management's discharge of a fellow union member. The judge based his conclu- sion on the impact of Rhodes' expulsion on other employee-members who might be restrained in ex- ercising their Section 7 rights to testify against grievants in contractual arbitration hearings. We note in support of his conclusion that the Respond- ent's membership was well aware that the Re- spondent expelled Rhodes for this reason as ex- plained below.6 I The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The judge inadvertently states in the first paragraph of his decision that the complaint alleges that the Respondent violated Sec 8(b)(4) The complaint does not allege this violation, nor was it passed on This inad- vertent error does not affect our decision The judge also inadvertently neglected to state whether the Respondent engaged in unfair labor prac- tices affecting commerce We find that the Respondent's unfair labor practices affect commerce within the meaning of Sec 2(6) and (7) of the Act 4 The Order is modified to require that the Respondent expunge from its records evidence of its unlawful discipline of Rhodes and that he be so notified See Plumbers Local 119 (Kamtech, Inc), 264 NLRB 688 (1982) 5 The record indicates generally that Rhodes served as a temporary "relief" supervisor during various, apparently limited, periods starting in 1978, including in June 1979 and May 1981 , as a result of which he was called to give arbitration testimony in November 1982 However, the record does not indicate that Rhodes served as a supervisor at the time he gave this arbitration testimony His promotion to permanent supervi- sor did not occur until March 1983 8 Member Hunter disagrees that the Union violated Sec 8 (b)(1)(A) by expelling Rhodes from membership Member Hunter notes that Rhodes 475 Shortly after the arbitration hearing at which Rhodes testified, an officer of the Respondent who had attended the hearing filed internal union charges against Rhodes. These charges alleged, without specification, that' Rhodes had engaged in "conduct detrimental to the welfare and interests of the membership." The Respondent publicized these charges by posting them on the union bulletin board and by announcing them at a general mem- bership meeting. At its next general membership meeting the Re- spondent tried Rhodes, the union officer who had filed the charges presented the case against him. The officer's presentation consisted entirely of an account of Rhodes' arbitration testimony regarding why Rhodes had prepared two poor work per- formance letters on the grievant and the related contention that Rhodes' conduct as a supervisor had been improper. No other evidence was offered against Rhodes, and Rhodes did not attend the trial. Based on this evidence the members at the meeting voted to expel Rhodes. On these facts we agree with the judge that the record establishes that the Respondent expelled Rhodes based on his arbitration testimony given as an employee as well as on the supervisory conduct Rhodes testified to at the arbitration. Both of these bases for the discipline violate the Act, and in par- ticular the Respondent's expulsion of Rhodes vio- lated Section 8(b)(1)(A) by its general impact on employee-members who may wish to testify against grievants in contractual arbitration hearings.? As stated above, Rhodes was an employee at the time of his arbitration testimony and his expulsion for such testimony has a direct, adverse impact on other employees who would so testify.8 2. We also agree with the judge's conclusion that the Respondent violated Section 8(d) and Section 8(b)(3) of the Act by disciplining Rhodes for testi- fying at the contractual arbitration hearing.9 Pro- had been promoted into a permanent supervisory position some 5 weeks before his expulsion from membership Thus, as a supervisor Rhodes had no protected right to belong to the Union Accordingly , the Union could expel Rhodes from membership for any reason without violating Sec 8(b)(1)(A) Thus, contrary to his colleagues , Member Hunter would dis- miss the 8(a)(1)(A) allegation However, Member Hunter does agree that the Union's conduct was violative of Sec 8(b)(3) and Sec 8(d) in that the Union thereby obstructed the operations of the arbitration procedure set forth in the collective-bargaining agreement and also violated Sec 8(b)(1)(B) because the Union's action was motivated by Rhodes ' behavior while he was acting as a supervisor ' It is equally clear that the related allegation against Rhodes in sup- port of his expulsion, that he engaged in misconduct as a supervisor, sup- ports the judge's conclusion that the Respondent also violated Sec 8(b)(1)(B) of the Act 8 We find that Rhodes' subsequent promotion to supervisor provides no basis for legitimizing union discipline directed at such employee con- duct 8 In stating that the Respondent violated Sec 8(b)(1)(A) and (3) and Sec 8(d) the judge explained that the "latter two sections were violated Continued 274 NLRB No. 63 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tection of the arbitral process is a cornerstone in the Federal statutory scheme of promoting indus- trial peace by the application and interpretation of the collective-bargaining agreement. The Supreme Court, recognizing the importance of safeguarding the arbitral process, sanctioned its integrity in the Steelworkers trilogy.10 The Board, too, has recog- nized this importance through its deferral policies. To maintain the confidence of those subject to its processes, to assure its integrity and effectiveness as a means of dispute resolution, and to protect its status with respect to our deferral policies, arbitra- tion must be shielded against measures which would tend to discourage any individual from ap- pearing and testifying fully and truthfully. Union rules and discipline which are designed to discour- age or prevent individuals from testifying or being called as witnesses in grievance-arbitration hearings are inherently destructive of the contractual arbi- tral process and are therefore unlawful. The Union's discipline of Rhodes for giving arbitration testimony adverse to the grievant tended to ob- struct and impair the arbitral process. Accordingly, not to find a violation of Section 8(d) and Section 8(b)(3) under these circumstances would sanction the perversion of the parties' arbitration clause and the impairment of this voluntarily agreed-upon dis- pute resolution procedure. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Oil, Chemical and Atomic Workers International Union, Local Union No. 4-23, AFL- CIO, Port Arthur, Texas, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Delete paragraph 2(a) and substitute the fol- lowing. "(a) Rescind the discipline imposed against Larry Rhodes, expunge from its records all references to such discipline, and notify him in writing that this has been done and that the discipline will not be used as a basis for future action against him." 2. Substitute the attached notice for that of the administrative law judge. derivatively because the union discipline obstructs and nullified the con- tractual arbitration clause " We disavow reliance on any suggestion that the Respondent's violations of Sec 8(b)(3) and Sec 8(d) were derivative rather than independent violations of the Act See Teamsters Local 788 (Marston Ball), 190 NLRB 24 (1971) 10 Steelworkers v American Mfg Co, 363 U S 564 (1960), Steelworkers v Warrior & Gulf Co, 363 US 574 (1960), Steelworkers v Enterprise Corp, 363 U S 593 (1960) APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT restrain and coerce (i) employees in the exercise of their rights under Section 7 of the Act and (ii) employers in the selection of their representatives for purposes of the adjustment of grievances by charging, trying, fining, or otherwise disciplining our members because they gave testi- mony in arbitration procedures under the collec- tive-bargaining agreement, and by such conduct thereby impairing the integrity of such arbitration procedures. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of their Section 7 rights or employers in their selection of representatives for purposes of the adjustment of grievances or refuse to bargain with employers in violation of Section 8(d) and Section 8(b)(3). WE WILL rescind the discipline imposed against Larry Rhodes, expunge from our records all refer- ences to such discipline, and notify him in writing that this has been done and that the discipline will not be used as a basis for future action against him. OIL, CHEMICAL AND ATOMIC WORK- ERS INTERNATIONAL UNION, LOCAL UNION No. 4-23, AFL-CIO DECISION STATEMENT OF THE CASE WILLIAM A. GERSHUNY, Administrative Law Judge A hearing was conducted in Port Arthur, Texas, on Oc- tober 6-7, 1983, on complaint issued July 19, 1983, alleg- ing a violation of Section 8(b)(1)(A) and Section 8(b)(3) and (4) of the Act based on the expulsion of Supervisor Rhodes from union membership on April 18, 1983. On the entire record, including my observation of wit- ness demeanor, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that Gulf Oil Corporation is an employer subject to the Act and that Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. OIL WORKERS LOCAL 4-23 (GULF OIL) 477 II THE UNFAIR LABOR PRACTICE The relevant facts are largely undisputed. At Gulf's Port Arthur refinery, where all operating and maintenance employees are represented by Respond- ent Union, it has been a longstanding practice (acknowl- edged in art VI, sec. I(A)4(b)(6) of the current labor agreement) to use bargaining unit employees to "relieve" supervisors when the need arises due to sickness, vaca- tion, and additional workloads. While serving as tempo- rary supervisors, such employees continue to accrue bar- gaining unit seniority, are paid an adjusted hourly rate, retain their union membership, continue to pay union dues, and retain all the fringe benefits of a unit employee. There is no contactual limitation on the period of time an employee may serve as temporary supervisor, al- though, in practice, such employees relieve a permanent supervisor only for a brief period of days or weeks. Before their designation as temporary supervisors, the hourly employees are tested for their potential ability to become permanent supervisors and receive training from permanent supervisors as to their duties and obligations This practice is an integral part of company policy which selects its supervisors from the ranks of hourly employees. Temporary supervisors perform all the duties and pos- sess all the authority of permanent supervisors: to direct the work force, to enforce company work rules and standards, to receive and adjust grievances at step one of the contractual grievance-arbitration procedure, to mete out discipline to hourly employees, to submit oral and written reports to management concerning employee misconduct, and to testify on behalf of the Company at arbitration hearings or other proceedings relating to such employee misconduct. There is no contractual limitation on the authority of temporary supervisors, but neither permanent nor temporary supervisors have any responsi- bility or authority in connection with collective bargain- ing. For some years, there has existed what the chairman of the Union's workmen's committee aptly described as an oral "understanding" between the Union and the Company that, whenever possible, hourly employees in their capacity as temporary supervisors would not be put in a position of having to discipline a union brother or sister. The basis of the understanding was a joint recog- nition of the potential conflict which confronts a tempo- rary supervisor who may be called upon to report and testify against a union member, in contravention of a union member's oath to "refrain from making statements against brothers.. . ." In the past, temporary supervisors have imposed discipline, adjusted grievances, and submit- ted written and oral reports on employee misconduct On rare occasions, hourly employees have been subpoe- naed by management to testify at arbitration proceedings, but the record is not clear as to whether such employees actually testified Apparently no temporary supervisor has ever testified on behalf of management at an arbitra- tion hearing prior to the one involved in this case In 1978, bargaining unit employee Rhodes was select- ed as a potential supervisor, was given training and, from time to time thereafter, served as a temporary supervisor in the laboratory In June 1979, temporary Supervisor Rhodes prepared a poor performance report on employ- ee Hudson and submitted it to the director of the labora- tory Hudson accused Rhodes of making false statements in the report. Two years later, in May 1981, Rhodes again disciplined Hudson for an excessive absence from her work station, giving her an oral warning and submit- ting a written report to the director In November 1982, during the course of an arbitration proceeding involving the discharge of Hudson, Rhodes testified on behalf of management as to the two prior incidents in which he, as a temporary supervisor, had taken disciplinary action against Hudson. The union representative objected to the testimony of a union member and, when the objection was overruled by the arbitrator, he declined to ask any questions, stating that he would not cross-examine a union brother. On March 14, 1983, Rhodes was appointed a perma- nent supervisor, the checkoff of dues ceased. It is unclear when union membership ended. One week later, he received written notification that a formal intraunion charge had been filed against him by the union representative at the arbitration hearing, alleg- ing a violation of article V, section 4(10) of the union constitution ("engaging in conduct detrimental to the welfare and interests of the membership . . ."). The charges were considered by the union membership at a special meeting on April 4, 1983, and thereafter on April 18, a union trial was conducted, Rhodes was found guilty of the charges and he was expelled from member- ship, despite the fact that, 5 weeks earlier, Rhodes had become a supervisor and no longer paid union dues. No- tices of the special meeting and of the trial were posted on union bulletin boards at the refinery and, at both ses- sions, the charges were explained to the members. The bases of the charge against Rhodes, as explained to the members, were (1) the disciplinary action against Hudson taken by Rhodes while a temporary supervisor (written and oral reports to management concerning Hudson's job performance) and (2) the overzealous performance of Rhodes' duties as temporary supervisor, which appeared to the Union to be an effort on Rhodes' part to get infor- mation to facilitate the eventual discharge of Hudson. The record evidence raises a strong inference that yet a third basis for the charge existed-Rhodes' testimony at the arbitration hearing in support of management's dis- charge of Hudson. Board law is clear that Section 8(b)(1)(A) and (3) and Section 8(d) are violated by union discipline of employ- ee-members for testifying in contractual arbitration pro- ceedings against a union member Auto Workers Local 1989 (Caterpillar Tractor), 249 NLRB 922 (1980), Team- sters Local 788 (Marston Ball), 190 NLRB 24 (1971). The latter two sections are violated derivatively because the union discipline obstructs and nullifies the contractual ar- bitration clause Here, one of the bases for the discipline against Rhodes was the giving of testimony against an- other member whose grievance had been carried to arbi- tration. Whether, at the time of the union disciplinary proceeding, Rhodes continued to be a member is not all that clear from the record evidence: he had become a permanent supervisor 1 week earlier and dues checkoff 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had ceased. For purposes of this case, however, it must be assumed that his membership remained in effect during the disciplinary proceedings, since there would have been no purpose for the proceedings had the Union considered Rhodes no longer a member. In any event, the discipline was violative of the Act because of its impact on other employee-members who might be re- strained in the exercise of their Section 7 rights to give testimony against grievants in arbitration hearings. Metal- lic Lathers Local 46 (Cement League), 259 NLRB 70 (1981). Moreover, the union discipline violated Section 8(b)(1)(B) because it, in part at least, was directed against temporary Supervisor Rhodes for his participation in grievance adjustment procedures under the contract. Co- lumbia Typographical Union 101 (Washington Post), 207 NLRB 841 (1973); Florida Power v. Electrical Workers IBEW Local 641, 417 U.S. 790 (1974). Here, the evidence is clear and unmistakable that temporary supervisors pos- sess all the authority of permanent supervisors with re- spect to the adjustment of grievances. to receive and dis- pose of grievances at step one, to submit written and oral reports of discipline to management; and to participate in grievance adjustment through the giving of testimony at arbitration proceedings. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Oil, Chemical and Atomic Workers International Union Local Union 4-23, AFL-CIO, Port Arthur, Texas, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining and coercing (i) employees in the exer- cise of their rights under Section 7 of the Act and (ii) employers in the selection of their representatives for purposes of the adjustment of grievances, by charging, trying, fining, or otherwise disciplining its members be- cause they gave testimony in arbitration procedures under the collective-bargaining agreement, and by such conduct thereby impairing the integrity of such contract procedures. (b) In any like or related manner restraining and co- ercing employees in the exercise of their Section 7 rights or employers in their selection of representatives for pur- poses of the adjustment of grievances or by refusing to bargain with employers in violation of Section 8(b) and Section 8(b)(3). 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the discipline imposed against Larry Rhodes and expunge from its records references to such discipline. (b) Post at its offices and meeting halls copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 23, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. ' If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 2 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board "