Local 8-398, The Oil, Chemical And Atomic Workers International Union, Afl-Cio (Gilbert Spruance Co.)

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 8-398, the Oil, Chemical and Atomic Workers International Union, AFL-CIO (Gilbert Spruance Company) and Raymond Banas. Case 4-CB-5144 8 December 1986 DECISION AND ORDER By MEMBERS JOHANSEN, BABSON, AND STEPHENS On 26 September 1986 Administrative Law Judge Donald R. Holley issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in opposition to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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, and conclusions and to adopt the recommended Order. FINDINGS OF FACT 1. JURISDICTION The Union is the exclusive collective-bargaining agent of certain employees employed by the Gilbert Spruance Company (Gilbert Spruance or the Company), a Penn- sylvania corporation with a facility located at Richmond and Tioga Streets, Philadelphia, Pennsylvania, where it is engaged in the manufacture of paint, varnish, lacquer, and stain. During the 12-month period preceding issu- ance of the complaint, Gilbert Spruance sold and shipped, from its above-described business operation to points located outside the State of Pennsylvania, prod- ucts valued in excess of $50,000. It is admitted, and I find, that Gilbert Spruance is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. STATUS OF LABOR ORGANIZATION It is admitted, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Margaret M. McGovern, Esq., for the General Counsel. Arnold F. Laikin, Esq., for the Respondent. DECISION STATEMENT OF THE CASE DONALD R. HOLLEY, Administrative Law Judge. On a charge filed by Raymond. Banas on 12 November 1985,1 the Regional Director for Region 4 of the Nation- al Labor Relations Board issued a complaint on 30 April 1986, which alleged, in substance, that Local 8-398, the Oil, Chemical and Atomic Workers International Union, AFL-CIO (Respondent or the Union) violated Section 8(b)(1)(A) of the National Labor Relations Act (the Act) by processing a grievance concerning the discharge of Raymond Banas in an arbitrary and perfunctory manner and by misrepresenting its actions regarding the process- ing of Banas' grievance. By timely answer, Respondent denied it had engaged in the unfair labor practice alleged in the complaint. The case was heard in Philadelphia, Pennsylvania, on 16 July 1986. All parties appeared and were afforded full opportunity to participate. On the entire record, includ- ing posthearing briefs filed by the parties and from my observation of the demeanor of the witnesses who ap- peared to give testimony, I make the following 1 All dates herein are 1985 unless otherwise indicated. The alleged discriminatee in this case, Raymond Banas, was, until 10 May 1985, employed in the bargain- ing unit represented by the Union. On 10 May, employees Raymond Banas (Banas) and John Myhasuk were terminated by William Dengler, Gil- bert Spruance's vice president in charge of operations. The assigned reason for the discharges was fighting on the job. Both employees filed grievances. William Kitch- ens, a member of the Gilbert Spruance shop committee, assisted them in writing up their grievances. Respondent's contract with Gilbert Spruance contains a four-step grievance procedure.2 The first step provides for presentation of the dispute to the aggrieved employ- ee's foreman; the second step provides for discussion with the plant superintendent; the third step provides for a meeting between the plant manager or his designee and the shop committee, which may be accompanied by an International Union representative; and, the fourth step is submission to arbitration. With respect to submission to arbitration, the contract provides, in pertinent part: (d) In any case where satisfactory settlement has not been achieved, such dispute or grievance may be submitted to the American Arbitration Associa- tion by either party provided that the matter is sub- mitted to arbitration not longer than two (2) months after completion of the steps outlined in Section 8.1(c) above. The record reveals that the Company, through Dengler, denied the Banas and Myhasuk grievances when they were filed and a third-step meeting was scheduled for 23 May. Attending that meeting for the Company were Dengler and another Gilbert, Spruance 2 See G C. Exh. 2. 282 NLRB No. 61 OIL WORKERS LOCAL 8-398 (SPRUANCE CO.) vice president, Rick Green. Attending for the Union were the members of the Gilbert Spruance shop commit- tee and International Representative Donald Burnett.3 During' the third-step meeting, Dengler again denied the grievance indicating that the Company had a rule that prohibited fighting on the job. He testified he in- formed the union participants he had had Myhasuk and Banas in his office on several occasions because they could not get along with each other and with their fellow employees. He claims he told them he had trans- ferred Banas from a mill job to a yard job at the request of his fellow employees and he had warned both Banas and Myhasuk at the time that they had to work together and get along and, if they became involved in a fist fight, he would fire them both.4 After Dengler denied the grievance ',and gave his reasons for the terminations, Bur- nett asked if 'he would bring the two back to work, bring them back with a suspension, bring them back with no backpay, or bring them back on probation. Dengler re- fused the options advanced by Burnett. At the conclu- sion of the meeting, Burnett asked if Dengler would agree to not fight the discharged employees' claims for unemployment. Dengler agreed not to fight the unem- ployment claims.5 Burnett testified he reported to Banas after the third- step meeting that the Company had refused to take him back, but had agreed not to fight his claim for unemploy- went. c Additionally, he told Banas the Union would have to decide whether it would take the grievance to arbitration. Burnett did, not consult with the leadership of the Union after the third-step meeting. He indicated he felt the members of the shop committee would let others know what had occurred there. Respondent' conducts its regular membership meetings the third Tuesday of each month. Its president, Shelton Lorick, indicated executive board meetings are held im- mediately before the regular meetings, and the executive board is the body that decides whether grievances will be taken to arbitration. He further indicated that before the executive board can vote to take a grievance to arbi- tration, the members of the bargaining unit of any given employer must, by secret ballot, vote to take a grievance involving unit employees to arbitration. At some point prior to 18 June, the employees in the Gilbert Spruance bargaining unit, by secret ballot, voted 19 to 4 in favor of taking the l4yhasuk and Banas griev- a It is uncontested, and I find, that the following union officials are, and have been at , all times material , agents of the Union within the mean- ing of Sec. 2(13) of the Act: Burnett; Shelton Lorick, president of the Local; Edward Barowski, recording secretary; Tony Malopolski, chair- man of the shop committee; and, William Kitchens, shop committeeman and executive board member. 4 Kitchens and other members of the shop committee were present when Banes and Myhasuk were warned . Kitchens testified a civil war was then occurring in the paint department between Myhasuk and Banes and he and other employees were in the middle . Kitchens indicated he was one of the employees whose complaints caused Dengler to warn the employees and transfer ,Banas to the yard in February 1985. 5 Banes testified his claim for unemployment was originally denied, but it was granted when he appealed and no Gilbert Spruance official ap- peared to contest it. 6 Banes denied ' Burnett told him the Company had agreed not to fight his unemployment claim . Burnett 'was the more impressive witness, and I credit his testimony where it conflicts with that given by Banas. 375 ances to arbitration. Thereafter, the Union's executive board met before the regular membership meeting on 18 June and its members voted to take the Banas grievance to arbitration. Lorick testified no such decision was made with respect to the Myhasuk grievance because that member approached him prior to the executive board meeting to tell him he had found other employment, was getting unemployment, and did not want his case arbi- trated.' At the conclusion of the 18 June executive board meeting, Lorick asked Tony Malopolski, the chief stew- ard at Gilbert Spruance, for the ballots that had been cast by the Gilbert Spruance employees. Malopolski indi- cated he had forgotten to bring them and Lorick in- structed him to be sure he got them to him.8 On 11 July, Respondent's executive committee met. The minutes of that meeting, Which appear in the record as General Counsel Exhibit 4, reveal that Tony Malo- polski "did not show with votes count." After the meet- ing, Lorick asked Barowski to inform Dengler that they were going to take Ray Banes', case to arbitration. Bar- owski testified he gave Dengler the message the follow- ing day, 12 July. Dengler expressed surprise when he was told the Banas grievance would be arbitrated by re- marking he could not believe they would go to arbitra- tion after he agreed not to contest Banas' unemployment claims. Banas testified he prepared and mailed to Lorick around 17 July a complete account of what had hap- pened on 10 May. Lorick testified he called the plant and attempted to talk to Malopolski on 29 July. He claimed Malopolski was unavailable, so he spoke with Barowski and told him they just had 2 days left on the Banas case and he still did not have the vote (ballots). Although Barowski had already told Dengler the Union intended to arbitrate the case, Lorick contends he told Barowski on 29 July to tell the Company they were taking the Banes case to arbitra- tion.9 Banas testified he conversed in person and by tele- phone with Kitchens, Barowski, and Malopolski at vari- ous times after filing his grievance. On each occasion, they told him the case was to be arbitrated. He asked Malopolski as late as 1-1/2 or 2 weeks before 12 Novem- ber (date charge was filed) about the status of his case, and Malopolski told him it was coming along and he felt he would win it. Lorick testified the ballots cast by the Gilbert Spruance unit employees when they were voting wheth- er to take both the Myhasuk and Banas grievances to ar7 7 Lorick exhibited confusion during his testimony. The first page of G.C. Exh. 5 appears to benotes taken during the 18 June executive board meeting. Those notes reveal the body voted that "both men should be brought back to work because there have been past fights witnessed by Company men and were overlooked ." The probability is that Myhasuk withdrew his grievance after the 18 June executive board meeting. 8 Lorick claimed during his testimony,that he told Malopolski he was to cause the unit employees to conduct another secret-ballot vote on whether to take the Banes grievance toy arbitration He claimed such action was required by the Union's bylaws. As indicated, infra, the em- ployees did not participate in a second vote. 8 Lorick subsequently indicated the date of the call was 2 days before the deadline for submitting the grievance to arbitration. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bitration were finally delivered to him on 15 August. 1 ° On 16 August, he formally submitted the Banas griev- ance to arbitration by writing the American Arbitration Association. On 28 August, Gilbert Spruance sent a letter to the American Arbitration Association . The text is as follows (G.C. Exh. 3): Dear Mr. Egger: We are in receipt of your letter dated August 26, 1985 concerning the case noted above. We enclose a copy of Article VIII of our Collec- tive Bargaining Agreement for the period of August 12, 1983 through August 16, 1986 which states that "the matter is submitted to arbitration not longer than two (2) months after completion of the steps outlined in Section 8. 1(c) above." The Grievant was dismissed May 10, 1985. First Grievance Meeting with Union Committee and Management was held May 14, 1985. Final Meeting with Donald G. Burnett OCAW International Rep- resentative, Grievants and Management was held May 23, 1985. Our records indicate that July 23, 1985 would be the expiration date of the two (2) months after com- pletion of the steps outlined in Section 8 . 1(c) of the Collective Bargaining Agreement. Based upon these facts, we respectfully submit that this matter is beyond the time frame outlined in Section 8 (d) of the Collective Bargaining Agree- ment and no arbitration should be required. Sincerely /s/ Richard T. Green Executive Vice President After Burnett received his copy of the above-quoted letter, he claims he telephoned Gilbert Spruance's attor- ney and sought to get him to agree to arbitrate the Banas grievance even though the submission was untimely. He testified the attorney refused his request, indicating the Company would be willing to submit the question of timeliness of the submission to the arbitrator. Burnett then contacted Lorick, explained the situation, and indi- cated he agreed the grievance was not timely submitted in accordance with the terms of the contract. At that point, Burnett claims he told Lorick he did not feel they could have prevailed on the merits in arbitration because Dengler had indicated during the third-step meeting that the Company had a rule against fighting on the job and Banas and Myhasuk had been expressly warned that if their arguments led to a fist fight, both would be fired. Burnett recommended that the grievance be withdrawn and Lorick agreed to withdraw it. Lorick did not advise Burnett during their discussion that Gilbert Spruance had been given timely notice on 12 July that the Union 10 The ballots produced were those cast prior to 18 June. The Banas grievance was never considered individually by the bargaining unit em- ployees intended to arbitrate the Banas case. At some unstated time, the grievance was withdrawn. Banas remained unaware during September and, Octo- ber that the Union was no longer processing his griev- ance. On 11 November, a maintenance man in the Gil- bert Spruance shop told him he had heard a rumor that the Company would not arbitrate because the matter had not been timely submitted. Banas telephoned Lorick and learned the rumor was true. He requested a copy of the Company's letter, which claimed the submission was un- timely and Lorick told him one was in the mail to him. He never received the letter. Analysis and Conclusions A labor union owes a duty of fair representation to all the employees it represents . Vaca v. Sipes, 386 US.'171 (1967). A union breaches the duty when its conduct toward a member of the bargaining unit is arbitrary, dis- criminatory, or in bad faith. Id. at 190. Although a union may not ignore a meritorious grievance or process it in a perfunctory fashion, a union is afforded broad discretion in deciding which grievances to pursue and the manner in which to handle them . Associated Transport, 209 NLRB 292 (1974). Mere negligence is insufficient to, es- tablish a breach of the duty of fair representation . Plumb- ers Local 195 (Stone & Webster), 240 NLRB 504, 508 (1979). When, as here, a union undertakes to process a griev- ance but decides to abandon it short of arbitration, a finding of violation turns not on'the merit of the griev- ance, 'but rather on whether the union's disposition of the grievance was perfunctory or motivated by ill will or other invidious considerations. Glass Bottle Blowers Local 106 (Owens-Illinois), 240 NLRB 324 (1979); Service Em- ployees Local 3036 (Linden Maintenance), 280 NLRB 995 (1986). The General Counsel does not contend in this case that the Union was motivated to cease its efforts to arli'i- trate the Banas grievance by ill will or other invidious considerations. Consequently, her burden was to show that the Union's actions were perfunctory. Recognizing her burden, the General Counsel concisely sets forth her position at page 8 of her brief, stating: The critical facts in Linden and in the instant case are that a union made a determination to process a grievance to arbitration but inexplicably failed to follow through on this determination, while falsely reassuring the grievant that arbitration was forth- coming. In support of her contention, she relies on Service Em- ployees Local 3036, supra, and Security Personnel of Hospi- tals & Health Related Facilities (Church Charity Founda- tion of Long Island), 267 NLRB 974 (1983). In"both cases, the Board found the unions provided perfunctory representation because they abandoned employees' griev- ances without giving any reason for such action. Respondent contends the record reveals it was unable to arbitrate the Banas grievance because Local President Lorick misinterpreted the submission provision of the contract and that caused the subsequent filing of the I OIL WORKERS LOCAL 8-398 (SPRUANCE CO.) grievance with the American Arbitration Association to be untimely. In support of its position, it relies principal- ly on the Board's decision in Truck Drivers Local 692 (Great Western Unifreight System), 209 NLRB 446 (1974), and the court's decision in Either v Postal Service, 590 F.2d 733 (8th Cir. 1979). In Local 692, the Board granted the union's Motion for Summary Judgment in which the complaint, as amplified by a response to a bill of particu- lars, merely charged the union with "negligence in fail- ing to file the grievance in a reasonable and timely fash- ion ." thus causing the employee's grievance to be time-barred. There, the Board refused to equate "negli- gence" with irrelevant, invidious, or unfair consider- ations. In Either, the court refused to find perfunctory representation when a union steward misinterpreted a contractual provision that defined the method and time for filing a grievance, thereby defeating an employee's contractual right to grieve the employer's announced de- cision to terminate his employment. In the final analysis, the Union prevails in this case if I credit Lorick's "contract misinterpretation" testimony, and the General Counsel prevails if I refuse to credit that testimony and find, instead, that the grievance was not timely submitted because the Gilbert Spruance steward failed, for some unexplained reason, to get employee bal-, lots to Lorick prior to 23 July. I am not disposed to ignore that Lorick's testimony reveals the Union took af- firmatiye action in an attempt to cause arbitration of Banas' grievance for the reasons set forth below. The uncontroverted, indeed corroborated, testimony leaves no doubt that Lorick caused the Company to be placed on notice of the fact that the Union intended to arbitrate the Banas grievance about 12 July.'1 Lorick claims he gave the notice after the Gilbert Spruance steward failed to get employee ballots to him because he had followed such a course of action at other employers and such action had been considered by other employers to constitute submission of a grievance to arbitration. The General Counsel contends Lorick's claim is unbe- lievable because the submission language in the instant contract is so clear that no reasonable person could con- clude a' grievance could be submitted to arbitration by simply giving the Company notice the Union intended to arbitrate a grievance, I do not agree. Here, the provision controlling submission, which is quoted, supra, states either party can'submit a grievance to the American Ar- bitration Association' provided the grievance is submitted to arbitration within a stated time period. The contract does not specifically state what action will constitute "submitted to arbitration." Although the parties were ap- parently agreed at the time of the hearing that a griev- ance could only be submitted to arbitration by submitting it to the Association, no evidence was offered that would reveal that the parties to the agreement agreed on such 11 Lorick, Barowskl, and Dengler each testified such notice was given in early July. 377 an interpretation of the clause under -consideration when they engaged in bargaining, which led to the' adoption of the clause. In my view, the submission clause is some- what ambiguous. Although Lorick appeared to be con- fused at times during his' appearance as a witness, I credit his assertion that he thought he could submit the Banas grievance to arbitration by giving Gilbert Spruance timely notice that the grievance was going to arbitration. As the testimony was being received in this case, it ap- peared to me that the Union engaged in perfunctory con- duct by failing, once the Company claimed the submis- sion was untimely, to argue the misinterpretation of con- tract matter. In retrospect, I can understand why the matter was not raised as it would be perfectly natural for a local union president, like 'Lorick, to simply accept the opinion of an International union representative that his union had clearly failed to submit the grievance to arbi- tration in accordance with the contract. As Lorick was negligent when he failed to raise the matter, his negli- gence cannot, in my view, be equated with irrelevant, in- vidious, unfair, or arbitrary conduct. In sum, I find that Respondent earnestly sought to cause arbitration of the Banas grievance,, but failed to ac- complish its - object because the Company and Lorick's advisor, Burnett, ultimately agreed the grievance was not timely submitted to arbitration in accordance with the contract. Remaining is the General Counsel's contention that the Union violated Section 8(b)(1)(A) by misinforming Banas of the status of his grievance. Absent evidence that the union officials who discussed the status of the grievance were aware at the time of the discussions that the griev- ance had been withdrawn, I fmd the allegation to be without merit. CONCLUSIONS OF LAW 1. The Gilbert Spruance Company is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The General Counsel has failed to prove by a,pre- ponderance of the evidence that the Union committed the unfair labor practices alleged in the complaint. On these findings of fact and conclusions of law and on, the entire record, I issue the following recommend- ed12 ORDER, The complaint is dismissed in its entirety. 12 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.