General Dynamics, Local 776

774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Machinists and Aero- space Workers, Local 776-A and Local Lodge 776-B (General Dynamics) and Ihsan El Sentry. Cases 16-CB-2649 and 16-CB-2686 15 January 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 23 May 1986 Administrative Law Judge James L. Rose issued the attached decision. The Charging Party filed exceptions, and the Respond- ent filed an answering brief. 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Texas. It is principally alleged that on 17 October 1985,3 the Respondent rejected an offer by General Dynamics to reinstate the Charging Party, and since about 6 De- cember refused to process to arbitration his grievance in violation of Section 8(b)(1)(A) of the National Labor Re- lations Act, 29 U.S.C. § 151 et seq. It is also alleged that the Respondent engaged in certain conduct towards the Charging Party which restrained and coerced him in the exercise of his Section 7 rights; however, these were nei- ther alleged in the complaint nor argued on brief to have been violative of any specific section of the Act. At the outset of the hearing the General Counsel moved to amend the complaint to add an additional allegation along these lines. Again no specific violation of the Act was alleged. Thus, paragraph 7 of the complaint, as amended, simply alleges certain acts as evidence of the unfair representation allegation. The Respondent generally denies that it engaged in any unfair labor practices and affirmatively contends that its representation of the Charging Party in connection with his discharge was fair and appropriate, and that the matter was not taken to arbitration because the Charging Party's case was too weak to justify doing so. On the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION ' The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive 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 re- versmg the findings. 2 In adopting the judge's conclusion that sufficient evidence of animos- ity has not been established by the General Counsel, we do not rely on his statement that "[w]hether Askew stated that the Umon could not allow a nonunion member to be put back to work when a Union member was not really does not make much difference and certainly does not demonstrate animosity toward EI Scu ry." such a statement could demon- strate some animosity toward El Semry . Nonetheless, based on the par- ticular facts here, we agree with the judge that the General Counsel failed to establish that the Respondent failed in its duty to represent El Semry fairly. Wayne A. Rustin, Esq., for the General Counsel. Rod Tanner, Esq., of Fort Worth, Texas, for the Re- spondent. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge. This matter' was tried before me on the General Counsel's complaint2 on 3 and 4 March 1986 at Fort Worth, ' The Respondent's name is amended to conform to the charge in Case 16-CB-2686. 3 The charge was filed on 6 December 1985, and the complaint issued on 16 January 1986. On 4 March 1986, the last day of the hearing, a new charge was filed in Case 16-CB-2686, and by agreement was consolidat- ed with Case 16-CB-2649. In essence, during the course of the hearing, it 282 NLRB No. 111 International Association of Machinists and Aerospace Workers, District Lodge 776 is admitted to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act. District Lodge 776 and its constituent locals represent employees of employers engaged in interstate commerce, including General Dynamics, a Delaware corporation with a manufacturing facility in Fort Worth, Texas, which annually manufactures and sells directly to points outside the State of Texas goods and materials valued in excess of $50,000 to the United States Government. It is admitted, and I find, that Gen- eral Dynamics is an employer engaged in interstate com- merce within the meaning of Section 2(6) and (7) of the Act. In connection with this representation of employees, District Lodge 776, in association with the International Association of Machinists and Aerospace Workers, nego- tiates collective-bargaining agreements with employers, including General Dynamics, and at all times material was a party to a collective-bargaining agreement cover- ing General Dynamics' 7000 production and maintenance employees (of 18,000 total) at the Fort Worth facility. Lodge 776-A is a distinct entity representing employees of General Dynamics on the first shift, and Local Lodge appeared that the named Respondent, Local 776-A, is a separate entity from the International Association of Machinists and Aerospace Workers District Lodge 776 and Local Lodge 776-B, the labor organizations in- volved in the events leading to this dispute Thus, if an unfair labor prac- tice was committed, such was the responsibility of the District Lodge and Local Lodge 776-B (the Respondent or the Union) rather than Local Lodge 776-A. 3 All dates hereafter are in 1985 unless otherwise indicated MACHINISTS LOCAL 776-A (GENERAL DYNAMICS) 775 776-B represents employees on the second shift. In addi- tion, District Lodge 776, represents employees of other employers, and its five elected business agents process grievances and generally enforce collective-bargaining agreements not only on behalf of employees at General Dynamics but other employees as well. The elected offi- cers and business agents of District Lodge 776 are agents of the affiliated locals, including Local Lodge 776-B. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Undisputed Facts Although the events described by various witnesses differed in detail (particularly which words were used), the parties are in general agreement concerning the facts surrounding this matter. In brief, the Charging Party, Ihsan El' Semry, is an Egyptian national and since 1974 has been a resident alien. El Semry received a B.S. degree in aerospace engi- neering from Oklahoma State University and in 1979 ap- plied for and was given a job with General Dynamics. On 24 September, during the course of his employ- ment as an electrician on the second shift, El Semry had a running altercation with fellow employee Bill Brown, which resulted in a fight between them. Although El Semry minimized his role and testified that he did not participate in the fight (testimony which I do not be- lieve, infra), El Semry did admit to the dispute and the fact that he was hit by Brown. Pursuant to established company policy concerning fights, El Semry and Brown were forthwith suspended pending an investigation, and subsequently both were terminated. El Semry and Brown each filed a grievance which was apparently denied at the first and second steps of the grievance procedure.4 Then Howard Askew, the step 3 union committeeman, took charge of El Semry's grievance. (A step 3 commit- teeman is a full-time employee either elected or appoint- ed to do this particular job, as distinguished from the elected business agents who handle the step 4 matters and are full-time employees of the District Lodge.) During step 3 discussions the Company offered to take El Semry' back to work if the Union would withdraw Brown's grievance. Askew declined to settle El Semry's grievance on the condition that Brown's grievance be dismissed, and both grievances were certified to step 4. Business Agent Pete Ludwick was initially assigned to handle El Semry's ' grievance but he became ill, and Dis- trict Lodge President Pat Lane reassigned the matter to O. D. Wright.5 4 The General Counsel apparently argues that the processing of El Semry's grievance at the first two stages was inappropriate and unfair. Although there is no evidence that the grievance was handled precisely in accordance with the terms of the collective-bargaining agreement at these stages, neither is there any evidence that El Semry 's grievance was processed at these stages differently than any other grievance. 5 Ludwick had been defeated for reelection on 20 November but was to continue to work for the District Lodge through December. Although the General Counsel seems to suggest that something about this election and Ludwick's failure to be reelected relates to the allegations that the Respondent failed adequately to represent El Semry, there is no evidence of such a connection Wright investigated the facts surrounding the El Semry and Brown discharges, including discussion with El Semry and others, and concluded that he would be unable to disprove that General Dynamics had had "proper cause." Thus, Wright resolved both grievances by accepting General Dynamics' offer that El Semry and Brown could resign rather than have their discharges be of record. The grievances were withdrawn rather then taken before an arbitrator. It is the Respondent's failure to arbitrate El Semry's grievance and the determination to resolve it in the manner indicated which the General Counsel contends was a breach of its fiduciary duty of fair representation to El Semry. As noted above, it is also alleged that various of the Respondent's officers and agents made statements to and about El Semry. These statements were not alleged to have been violations of the Act for which a remedy is sought. Apparently proof of these allegations is meant to demonstrate an animosity on the part of the Respond- ent's officers towards El Semry because he is not a member of the Union, having withdrawn and worked during the 1974 strike, and is not a United States citizen. B. Analysis and Conclusions A labor organization has a duty under the Act to rep- resent fairly all members of the bargaining unit which it represents, and when this duty is breached it violates Section 8(b)(1)(A) of the Act. Miranda Fuel Co., 140 NLRB 181 (1962). In addition, a labor organization may be liable for a breach of this duty in a Section 301 action. Veca v. Sipes, 386 U.S. 171 (1967). In myriad cases since Miranda, the Board has outlined the parameters of the union's duty of fair representation. Generally this duty is fiduciary in nature and requires the union not to act in an arbitrary, invidious, or per- functory manner. Further, the duty is owed to "all" unit employees. Thus, a union may not act in a manner most favorable to one member of the bargaining unit if to do so would have a detrimental effect on another. For instance, in Clothing & Textile Workers Local 148T (Leshner Corp.), 259 NLRB 1120 (1982), two unit em- ployees were discharged for fighting. The company of- fered to reinstate one but not the other. The union re- jected this offer stating that both must be reinstated or neither. An administrative law, judge found a violation with regard to the employee whom the company offered to reinstate. The Board reversed, holding there is no vio- lation when the alleged failure to fairly represent em- ployees was the refusal to accept an action 'which would have been beneficial to one bargaining unit member at the expense of another. The Board stated: There is nothing in the record to indicate that the Respondent's position that both Blaydes and Lewis be reinstated or neither, was anything other than a good-faith, honest attempt to secure the reinstate- ment of both grievants.' The Respondent also owed a duty of fair representation to Lewis. We see no reason why its duty to represent Blaydes fairly and 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD act as her advocate required it to accept the Em- ployer's offer to reinstate Blaydes at the expense of Lewis' continued employment. The Board has held that a union has a "wide range of discretion in serv- ing the unit it represents" and the Respondent's re- sponse to the Employer's "offer," a response which sought to obtain reinstatement of both grievants, certainly falls within that discretion. [Citations omit- ted.] In Leshner, the Board went on to note that there was no evidence that the union's representation of the charg- ing party was based on anomosity or discrimination toward her. A union has broad discretion in representing employ- ees, and the fact that the union may not have acted in the best interest of a particular unit employee does not itself prove unfair representation. To make out a viola- tion the General Counsel must prove the union's act was both unfair and caused by animosity or discrimination toward the individual. I conclude that the General Counsel failed to prove either that the Respondent unfairly represented El Semry in the processing of his grievance, or that in any way its representation of him was the result of animosity or dis- crimination. First, of itself the fact that the Respondent did not accept General Dynamics' contingent offer to reinstate El Semry does not prove a violation. The Respondent also had a duty to Brown and could not favor one over the other. The General Counsel also contends that the Respond- ent acted out of animosity, relying principally on the fact that El Semry withdrew from the Union during the 1974 strike and continued to work. This, it is argued, was known to agents of the Respondent at the time that El Semry filed his discharge grievance, and such is the reason the Respondent did not adequately process it. It is also contended that Wright specifically had animosity to- wards El Semry because he is a foreign national. To the extent the General Counsel sought to establish a proscribed motive through the testimony of El Semry, I specifically discredit it. I found El Semry to be an un- believable and unreliable witness. His testimony was self- serving in almost every respect and his demeanor nega- tive. He minimized and discounted his participation in al- tercations with fellow employees and his supervisor, and exaggerated the statements of bias allegedly made by others. In addition, and of significance, on his employ- ment application in answer to whether he is a U.S. citi- zen, he marked the box indicating yes. I believe El Semry marked the "yes" box on his em- ployment application deliberately and such was not an inadvertent error. A "no" answer (if that had been his intention) would have required additional information- specifically, his alien number. This space was blank. Had he merely marked the wrong box by mistake, he would nevertheless have entered his alien number. El Semry did not testify that in some way he had been misled by the question on the application, nor is there any reason to believe that he would have been misled. The conclusion is inescapable that he marked the wrong box on purpose and with the intent to mislead. The fact that some 3 months later he filed a Department of Defense form re- quired for security clearance in which he stated that he was not a U.S. citizen does not mitigate the deliberate- ness of his initial act. (The DOD form recites the Feder- al criminal penalties for giving false information.) Whether El Semry was a citizen, and therefore eligible for a security clearance, is not of particular significance with regard to the substantive matters in this complaint. However, this matter is important because it demon- strates El Semry's capacity for being untruthful. There is some testimony, and the General Counsel argues, that there is a second application for employment on which El Semry marked both the "yes" and the "no" boxes. Because this application is not in evidence (nor was it offered) and not available for inspection, it is not considered. But even if there was such a second applica- tion, it scarcely establishes an innocent ambiguity for the same reasons that marking the "yes" box cannot be con- sidered an inadvertent error. The General Counsel in effect argues that the infer- ence of hostility, and therefore unfair representation, should be drawn from certain statements allegedly made by representatives of the District Lodge about El Semry during the course of processing his grievance. For in- stance, Gregory Marsh, El Semry's neighbor and friend, testified on behalf of El Semry, stating that he talked to Askew concerning El Semry's grievance and: He [Askew] stated that the company was interested in bringing Mr. El Semry back, but definitely did not want Mr. Brown back. He stated that Mr. El Semry was a non-union member and that Mr. Brown was a union member. He said the union's position was that they were dead set on putting both men back. He stated that the union could not put a non-union member back to work without also putting a union member back to work. Marsh testified that during a third meeting he had with Askew, Askew stated, "Did you know that Mr. El Semry worked during the strike?" Askew allegedly said that several people at the union hall did not want El Semry to have his job back. Finally, Marsh testified that he called Wright concern- ing El Semry's grievance (a call which Wright corrobo- rates) asking what was going on, and after finally dis- cussing the matter on its merits (Wright having ques- tioned who Marsh is and why he was interested in the El Semry grievance) Wright stated that the fight ' was just one reason the Company discharged him. In addition, El Semry could not get along with other employees and, according to Marsh, Wright stated that El Semry "was a foreigner." Marsh's testimony concerning his conversations with Askew and Wright are generally consistent with 'the un- disputed facts in this case that Askew handled the griev- ance at step 3 and declined the Company's offer to rein- state El Semry on the condition that Brown's grievance be withdrawn. Whether Askew stated that the Union could not allow a nonunion member to be put back to work when a union member was not really does not MACHINISTS LOCAL 776-A (GENERAL DYNAMICS) 777 make much difference and certainly does not demon- strate animosity toward El Sentry. The fact of the matter is that the Respondent has 'a duty to all bargaining unit employees and could not accept favorable settlement of one grievance at the expense of another-regardless of who was the union member. No doubt in discussing the El Semry grievance Wright may have said something concerning the fact that El Semry is not a U.S. citizen. Such was one of the factors the Company relied on. Thus, in its letter of 5 Decem- ber, requested by El Semry, C. D. Bartek, chief of labor relations, wrote: According to the information that the Company had in its possession at the time of your termination, you committed the following violations of Compa- ny rules: 1. You were involved in a fight with another em- ployee which you apparently precipitated. 2. You have apparently been a disruptive influ- ence in your department which has adversely im- pacted the everyday production effort. 3. You have apparently provided erroneous infor- mation to the Company. The erroneous information paragraph relates to El Semry's application answer that he is a U.S. citizen, al- though he is not. Jennings Lee Summers, an inspector on the second shift and a committeeman (though not in El Semry's grievance chain), testified that he talked to Wright con- cerning El Semry's grievance and, among other things: And then he [Wright] said, well, he's [El Semry] just bugged him and everybody else to death about the case and that he wasn't a citizen and a couple of other things I didn't think were relevant to the case. Assuming some animosity on the part of the officers and agents of the Union toward El Semry because he re- signed from the Union and worked during the strike, such is not sufficient to prove the Union's failure in its duty to represent him fairly. 'There must, be some causal connection between whatever animosity that may exist and the Union's representation of El Semry. There is no direct evidence of such animosity in this case other than the statements allegedly made by Wright. Nor is there evidence from which a reasonable infer- ence can be drawn that the Respondent's representation of El Semry was the result of animus . For instance, there is no evidence that Respondent represented union mem- bers differently and more fairly than nonunion members. Such, if established, would have been sufficient to prove a violation of the Act. See, for instance, Lea Industries, 261 NLRB 1136, 1137 (1982), in which the Board said: Relying primarily on the difference in representa- tion accorded union member Swallows and union opponent Green, the administrative law judge found, and we agree, that the Union's conduct in this matter constituted a violation of Section 8(b)(1)(A). But here - there is no evidence that the Respondent treated nonmembers differently from members . Indeed, here Brown was a union member and received precisely the same representation as El Semry. Brown was not treated more favorably. There is some evidence of several other fights where employees were discharged, their matters grieved, and the discharges sustained . In others, employees were re- turned to work at various steps of the grievance proce- dure. In one the fight occurred in November, but the matter was not settled until the week prior to the hear- ing. In that case one employee involved was R. C. Mitchell, whose grievance was settled with his reinstate- ment. Mitchell is not a member of the Union. Regarding the other cases, there is no evidence wheth- er the -individuals involved were members of the Union or not members. Thus, there' is no basis from which to conclude that the Respondent had a pattern of treating nonmembers differently from members. Indeed, there is no evidence about how many, of the 7000 bargaining unit employees are in fact members of the Union . (Texas is a right-to-work State and thus there is no union-shop clause, in the collective-bargaining agreement .) There is simply no evidence of disparate treatment from which an inference,of unlawful motive can be drawn. There is undisputed testimony from Lane, the presi- dent of the Local Lodge, that the Respondent processes approximately 1000 grievances a year . It is reasonable that some of the members of the bargaining unit are not members of the Union, and with this large number of grievances, were there a pattern of disparate treatment by the Union, certainly there would ,be some evidence of that. None was brought forth. Finally, the fact that El Semry resigned from the Union and worked during the strike does not entitle him to preferential treatment . In effect, however, this i s what the General Counsel argues by stating that the Union should have accepted the Company's offer to put El Sentry back to work while withdrawing Brown's griev- ance, and failing to do that it should have taken the El Semry grievance to arbitration. Although the merits of the El Semry grievance are of course not before me for decision, it is clear that El Semry participated in a fight, made a false statement on his employment application, and had difficulty in getting along with fellow employees and his supervisor. Al- though these last two matters were apparently consid- ered relatively trivial by the Company in view of its one offer to reinstate El Sentry, certainly they are factors which the Union could reasonably believe an arbitrator would take into consideration when deciding whether to sustain the discharge. The Union's determination that the El Semry griev- ance was too weak to justify proceeding to arbitration is certainly not so unreasonable on this record as to imply that it was taken in bad faith . As the Board has held on numerous occasions, a union has "considerable griev- ance-handling discretion." Without violating the Act, a union can determine that 'a grievance is unmeritorious and should not be taken to arbitration. Hotel & Restau- 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rant Employees Local 64 (HLJ Management), 278 NLRB 773 (1986). I conclude that sufficient evidence, direct or implied, of animosity, discrimination, in will, or other invidious considerations has not been established by the General Counsel. In addition, I conclude that the General Coun- sel did not establish that in fact El Semry's grievance was handled in an unfair manner, given the fact of his record with other employees and supervisors and the employment application. Thus, notwithstanding that the Respondent's officers may have been unhappy that El Semry resigned from the Union to work during the strike, I cannot conclude that the General Counsel estab- lished a violation of Section S(b)(1)(A) of the Act in the representation of El Semry generally, or specifically, in refusing the contingent offer of reinstatement or,refusing to take his case through arbitration. Accordingly, I conclude that the General Counsel failed to establish by a preponderance of the credible evi- dence that the Respondent violated Section 8(b)(1)(A) of the Act in connection with its representation of El Semry. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The complaint is dismissed in its entirety. 6 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.