Machinists District 186 (Federal Mogul)

MACHINISTS DISTRICT 186 (FEDERAL MOGUL) International Association of Machinists and Aero space Workers District 186, Lodge 2533, AFL- CIO (Federal Mogul Corporation) and Herman R Humphreys Case 5-CB-4592 October 31 1988 DECISION AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On October 4 1984 Administrative Law Judge James T Youngblood issued the attached decision The General Counsel filed exceptions and a sup porting brief and the Respondent filed an oppose tion to the General Counsels 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 but not to adopt the recommended Order The judge found that the Respondent s refusal to process employee Humnhreys grievance beyond the second step of the grievance procedure because he was not a union member violated Section 8(b)(1)(A) The Union filed no exceptions The judge however declined to award a backpay remedy because inter alia he did not know wheth er the grievance over the failure to receive either of two jobs Humphreys bid on was meritorious or which of the two jobs with different wage rates Humphreys might have obtained had he prevailed in the grievance procedure In Rubber Workers Local 250 (Mack Wayne Clo sures) 290 NLRB 816 (1988) (Mark Wayne II) i we held that the General Counsel must initially es tablish that an employees grievance was not clear ly frivolous as a prerequisite to a make whole remedy Once the General Counsel meets that burden the burden of proof shifts to the union to establish that the grievance lacked merit Although the merits of Humphreys grievance have not been resolved the General Counsel met her burden of establishing that the grievance was not clearly friv In accordance with her partial dissent in Mack Wayne II Member Cracraft would place the burden of proof on the General Counsel to es tablish that Humphreys grievance was meritonous before the Board may assess backpay liability against th Union As Member Cracraft s dissent would change the burden of proof in these cases and as the General Counsel would not have been on notice of this change Member Cracraft would remand the case to the judge to allow the parties to present evi deuce on the issue of whether the grievance was meritorious with the burden on the General Counsel to establish that it was 535 olous 2 We shall therefore follow the procedure set forth in Mack Wayne II and remand the case to the judge REMEDY The Respondent has engaged in unfair labor practices and we shall order it to cease and desist and to take affirmative action designed to effectu ate the purposes of the Act We find that the Gen eral Counsel has established that Humphreys grievance was not clearly frivolous and that the burden of proof has shifted to the Respondent to prove that it lacks merit The Respondent may elect to do so at either the unfair labor practice stage or in a compliance proceeding See Mack Wayne II supra Accordingly we shall remand this case to the judge Should the Respondent elect to litigate the merits issue now the judge shall con vene a hearing for the purpose of taking evidence and when the hearing is concluded shall prepare and serve on the parties a supplemental decision Should the Respondent elect to litigate the merits issue at the compliance stage then the judge shall recommend that the Respondent be ordered to comply with provisional make whole and other remedies similar to those set out in Rubber Workers Local 250 (Mack Wayne Closures) 279 NLRB 1074 (1986) (Mack Wayne 1) 3 ORDER It is ordered that the record in this proceeding is reopened and remanded to the Chief Administra tive Law Judge, who shall designate an administra Live law judge for the purpose of allowing the Union to elect whether to present evidence on the merits of the grievance at a hearing or at a subse quent compliance stage If the Union elects to present evidence on the merits of the grievance at the compliance stage then the judge shall recommend an appropriate Order that shall contain provisional make whole and other remedies including a cease and desist order See Mack Wayne I supra If the Union elects to present evidence on the merits of the grievance at this time the judge shall convene a further hearing for the purpose of taking evidence in accordance with this decision On the hearings conclusion the judge shall prepare and serve on the parties a supplemental decision con taining findings of fact conclusions of law recom 2 The record shows that Humphreys believed himself best qualified for both jobs on which he bid and that a union steward agreed he was more qualified than other bidders 9 Administrative Law Judge Youngblood having retired the Board is remanding this proceeding to the Chief Administrative Law Judge for further processing in accord with the Order 291 NLRB No 91 536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mendations and an appropriate Order Following service of the supplemental decision on the parties the provisions of Section 102 46 of the Board s Rules and Regulations shall govern Jacquilyn W Mintz Esq for the General Counsel Coet Combs Esq of Norfolk Virginia for the Respond ent Herman R Humphreys of Blacksburg Virginia for the Charging Party DECISION STATEMENT OF THE CASE JAMES T YOUNGBLOOD Administrative Law Judge The complaint which issued on April 18 1984 and amended at the hearing alleges that International Asso ciation of Machinists and Aerospace Workers District 186 Local 2533 AFL-CIO (the Union) has engaged in certain acts and conduct in violation of Section 8(b)(1)(A) of the Act The Union filed an answer deny ing that it committed any unfair labor practices This matter was tried before me in Blacksburg Virginia on June 21 and 22 1984 All parties were represented at the hearing and the Union and the General Counsel filed briefs which have been duly considered On the entire record in this matter and from my ob servations of the witnesses and their demeanor while tes tifying and after due consideration of the briefs filed I make the following FINDINGS OF FACT AND CONCLUSIONS' I THE BUSINESS OF THE EMPLOYER INVOLVED Federal Mogul Corporation (the Employer) a Michi gan corporation with an office and place of business in Blacksburg Virginia is engaged in the manufacture and nonretail sale and distribution of engine bearings for in ternal combustion engines The Union admits and I find that the Employer is an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Union admits and I find that it is a labor organs zation within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES The Union is the exclusive collective bargaining repre sentative of all employees of the Employer in the follow mg unit ' The facts found are a compilation of the credited testimony the ex hibits and stipulation of fact viewed in light of logical consistency and inherent probability Although these findings may not contain or refer to all the evidence all has been weighed and considered To the extent that any testimony or other evidence not mentioned in this decision may appear to contradict my findings of fact I have not disregarded that evi dence but have rejected it as incredible lacking in probative weight sur plusage or irrelevant Credibility resolutions have been made on the basis of the whole record including the inherent probabilities of the testimony and the demeanor of the witnesses Where it may be required I will set forth specific credibility findings All hourly rated production and maintenance em ployees as defined in the Certification of Represent ative in National Labor Relations Board Case No 5-RC-8008 July 3 1972 employed by the Employ er at its Blacksburg Virginia plant and shall exclude all plant and office clerical employees quality insur ance employees professional employees guards and supervisors as defined in the Labor Manage ment Relations Act of 1947 The Respondent Union and the Employer are parties to a collective bargaining agreement covering wages hours and other terms and conditions of employment of the employees of the Employer This agreement contains a grievance and arbitration provision Herman Randall Humphreys began employment with the Employer in June 1972 He was a member of the Union for about 5 years leaving the Union s membership in 1982 His job classification is tool/cutter grinder In the fall of 1983 he bid on two jobs as tool grinder and tool die trainee When he applied for these jobs his wage rate was $7 98 per hour The job of tool grinder was ap proximately $1 more per hour and the job of tool and die trainee was approximately $2 more per hour On December 1 1983 he was called to a meeting with Tool Room Supervisor Dangerfield and Second Shift Su pervisor Bennie Cox and Shop Steward Jimmy Wirt Dangerfield informed Humphreys that an employee by the name of Donnie Quesenbery got the tool and die training job and that Mike Brogan got the tool grinder job Dangerfield said that there were a lot of names on the list and that everybody was viewed as being equally qualified and that they used seniority as the deciding factor in awarding the jobs Humphreys stated that he was the most qualified and the union steward agreed that Humphreys was the more qualified applicant Fol lowing this meeting Wirt pursued this as a grievance and discussed this problem with James Metcalf the president of the Union who told Wirt no grievance Wirt in formed Humphreys the next day that he had talked to Metcalf and that Metcalf's final words were no griev ance At this point Humphreys accepted the fact that the Union was not going to file a grievance and walked away though he was somewhat disgusted Later on after another day had passed he went back to work and insist ed to Wirt that they file a grievance Wirt gave Hum phreys a grievance form and told him to fill it out and not tell anybody that he had given the grievance form to Humphreys Humphreys filled out the grievance and gave it back to Wirt and Wirt presented it to Danger field who wrote on the grievance grievance denied no violation of contract signed it dated it and returned it to Wirt Wirt then presented the grievance to the person nel manager Charles Edmonds for what was the second step On December 8 1983 the personnel manager called a meeting which was attended by Dangerfield Wirt and Humphreys As a result of the meeting on December 8 Edmonds denied the grievance Following the meeting Wirt told Humphreys that step 2 was as far as he could take the grievance and that MACHINISTS DISTRICT 186 (FEDERAL MOGUL) whatever happened would be in the hands of Al Porter field the chief steward Wirt expressed no opinion re garding the merits of grievance at that point 2 A union meeting was held on Sunday December 11 1983 At this meeting Humphreys grievance was report ed on and Wirt recommended to the membership that the grievance be dropped Metcalf also agreed that the grievance should be dropped and explain that the Union had spent too much time and money on scabs already William Freeman an employee and union member cre dibly testified that at this meeting he made a motion for the Union to reimburse him for 2 1/2 months of backpay which he lost because the Union had mishandled his grievance in that it did not turn in the paperwork on time In response to his motion President Jim Metcalf stated that Freeman could not make a motion on his own behalf Thereafter the members had a discussion as to why Freeman could not make such a motion Ultimately Metcalf stated that Freeman could not make the motion on his own behalf and if somebody made the motion for him and Freeman won this would open the door for a scab to sue the Union and get backpay too In explaining what this meant Freeman stated that an other employee a nonmember of the Union Rodney Radford was terminated at the same time and their grievances went to arbitration together and that it was Radford that Metcalf was referring to when he made a reference to a scab Freeman stated that Metcalf had re ferred to Radford as a scab in previous meetings Free man stated that during that meeting Marvin Caldwell said to Metcalf Jim you re penalizing Willie a union member because you don t like Rodney Radford a non union member Metcalf merely shrugged his shoulders Freeman testified that he knew the Humphreys gnev ance was going to be discussed at that meeting but be cause of his problems he does not recall what happened with Humphreys grievance Employee and union member Benjamin T Jones credi bly testified that he attended the December 11 1983 meeting at which Randall Humphreys grievance was discussed Metcalf told the membership that the griev ance had been filed and then turned the discussion over to Wirt Wirt advised that he had filed a grievance for Humphreys and that it was in the second step and that he did not feel that it was a good grievance but he filed it anyway Jones stated that Metcalf agreed with Wirt and that he thought the Union had wasted too much 2 Wirt testified that following Edmonds denial of the grievance Hum phreys for the second time stated that he agreed with Edmonds and Dan gerfield and that they had chosen the better man and the senior man for the jobs but he was still personally not satisfied Wirt testified further that he recommended that the grievance not go to the third step and that he so informed Humphreys Humphreys denies this testimony of Wirt While it is not important to this decision what Humphreys stated after the meet ing it is important for the credibility resolutions I will make Wirt tests feed that Humphreys filled out the grievance but in his affidavit he stated that he filled it out and submitted it for Humphreys Wirt admitted that he did not fill out the grievance but attempted to pass this over by indi cating that he had filled out the date and signed it In any event to the extent that there is a difference in the testimony of Humphreys and Wirt I have credited Humphreys Humphreys was straightforward and his tes timony had a ring of truth Wirt on the other hand seemed to be testify ing in a manner to justify the Union s action no matter what he had to say in that respect 537 time and money on scabs Metcalf further said that they were going to drop the grievance Jones testified that he was present when the Freeman motion was placed on the floor and that it was he who asked Metalf why they could not pay the grievance because it was the Union s fault that the grievance was waived He stated that Met calf said there was no way we could pay Willis without also paying a scab Jones stated Metcalf was referring to Radford as the scab Jones testified that he was present at the union meeting in January 1984 and there was no discussion relating to the Humphreys grievance and that he was also present at the February 1984 meet ing when the January minutes were read and no refer ence was made to the Humphreys grievance 3 Frank D Rudisill an employee and trustee of the Union and the second shift shop steward credibly testi fled that he was in attendance at the December 11 1983 meeting when the grievance of Humphreys was report ed The Union reported that it was dropping the griev ance and James Metcalf said that it was time to move on to other matters that we had spent enough time and money on scabs Rudisill also testified credibly that at this meeting Freeman made a motion for reimbursement for backpay and Metcalf said the Union could not pay Freeman because if they paid him they would have to pay the other man who was not a member of the Union 4 On December 12 1983 Benjamin Jones told Hum phreys that his grievance had been canned Thereafter Humphreys wrote to Bob Glover the union representa tive protesting the Union s refusal to process his griev ance any further 5 On December 13 1983 Wirt informed Humphreys only that his grievance had been discussed at the union meeting and the members felt that the Company s dispo sition was proper On December 14 1983 Wirt gave Humphreys the denied grievance which had been signed by Edmonds and Wirt on December 14 1983 There was also a notation will not appeal initialed by Porterfield the chief steward Humphreys then asked Porterfield if the Union would take his grievance to the third step and Porterfield responded that he would have to talk to Met calf The following day Porterfield advised Humphreys that he had talked to Metcalf and that was as far as the grievance was going Humphreys testified that this was the last he heard anything about the grievance being pur sued any further until at the hearing when Business Rep 3 Robert A Glover the business representative for the Union testified about the January 8 1984 meeting In so doing he used the original min utes of the union meeting to refresh his recollection and to support his testimony that the Humphreys grievance was discussed at that union meeting The General Counsel raised an objection contending that the part of the minutes that related to the Humphreys grievance was written in a different color ink giving the appearance that it was added The Re spondent refused to provide the originals and put them in evidence to corroborate the testimony Because Glover had used the notes to testify and the Union refused to put the notes into evidence I excluded Glover s testimony in this regard 4 James Metcalf testified and denied that he made these statements Metcalfs testimony was evasive and certainly not straightforward nor did it have a ring of truth Accordingly his testimony is not credited s The correspondence between Humphreys and Glover is in evidence as G C Exhs 2-5 538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD resentative Glover testified that he took the grievance to the third step with Personnel Manager Edmonds Glover and Metcalf were the only representatives that testified regarding a third step in the Humphreys gnev ance Edmonds who testified on behalf of the Company stated that he did meet with Glover and in fact did dis cuss the Humphreys matter but that it was not a third step grievance meeting However Edmonds testified that insofar as the Company was concerned the Union s next step would have to be arbitration Edmonds testified that all this was over by the end of December and he cer tainly had no further discussions with Glover after that time Glover s testimony that he met with Edmonds on sev eral occasions pursuing the Humphreys grievance to the third step is not credited It is my conclusion that the Union did not pursue this grievance to the third step The correspondence between Humphreys and Glover certainly gives no indication that the Union was pursuing the grievance to the third step on the contrary it indicates that the Union agreed with the Company s disposition In this regard Chief Steward Porterfield testified that Humphreys grievance came up only during a meeting called to discuss other grievances and that no third step appeal was taken He testified that he was never told to attend a third step meeting and that he never attended a meeting in which Humphreys personnel file was pro duced and examined by the Union Porterfield admitted that as far as he was concerned Humphreys grievance was dropped at the second step Steward Wirt testified that he decided after the second step to drop the griev ance He further admitted that he was never informed by either Glover or Metcalf of any decision to appeal the grievance to third step and he never attended any third step meeting concerning this grievance Wirt also testi feed that he was never appraised of the results of any third step meeting These comments are thrown in merely to support my conclusion that notwithstanding Glovers claim that he pursued this matter to a third step no third step grievance was taken Glover appar ently moved by Humphreys plea did in fact check into the matter but merely to inform himself of the nature of the grievance and to be satisfied in his own mind that the Company had handled the matter in a proper manner Discussion and Conclusion As indicated earlier the General Counsel contends that by its conduct at the December 11 1983 meeting the Respondent violated Section 8(b)(1)(A) in that (1) it informed its members that it was going to drop Randall Humphreys grievance because the Union was spending too much money and time on nonmembers (2) that it in formed its members that Respondent would not reim burse an employee for backpay waived because to do so Respondent would have to do the same for nonmembers and (3) refused and failed to process beyond the second step the grievance filed by Randall Humphreys because he was not a member of the Union The Respondent contends that these statements were not made and that it refused to process Humphreys grievance any further because the Union was satisfied that the Company had made the proper disposition of the jobs and that Humphreys grievance had no merit The Respondent also denies that it refused to reimburse an employee because to do so would mean that the Union would have to reimburse a nonmember of the Union In general the Respondent denies any violation of the Act The credible evidence in this record as I have set forth above clearly demonstrates that at the union meet ing on December 11 1983 Respondents president James Metcalf informed the assembled employees and union members that the Respondent was not going to pursue Humphreys grievance any further because the Union had spent too much time and money on scabs At the same meeting the record testimony clearly re veals that Metcalf also told the assembled employees and union members that the Union would not reimburse union member William Freeman for backpay which it apparently caused him to lose because in order to pay Freeman the Union would also have to pay a non member of the Union Thereafter the Union did not pursue or process Humphreys grievance and refused to do so because he was a nonmember of the Respondent which conduct is clearly violative of Section 8(b)(1)(A) of the Act and I so find Respondent refused to process Humphreys grievance for an arbitrary and discriminato ry reason and such a refusal to represent Humphreys was thus based on illegal considerations in violation of Sec Lion 8(b)(1)(A) It is also my conclusion that Respondent violated Sec tion 8(b)(1)(A) as alleged in the complaint by informing employees that Respondent was going to drop Hum phreys grievance because of his nonunion membership and by informing employees that Respondent would not reimburse an employee because it would mean that the Respondent would also have to reimburse a nonunion member CONCLUSIONS OF LAW 1 By informing employees that it was going to drop the grievance of Herman Randall Humphreys because it was spending too much time and money on nonmembers of the Union the Union has violated Section 8(b)(1)(A) of the Act 2 By informing employees that it would not reimburse an employee member for backpay waived in a settlement of a grievance because to do so it would also have to do the same for a nonunion member the Union has violated Section 8(b)(1)(A) of the Act 3 By failing and refusing to process beyond the second step a grievance validly filed by an employee be cause that employee was not a member of the Union which reason is unfair arbitrary invidious and a breach of the fiduciary owed the employees it represents the Union has violated Section 8(b)(1)(A) of the Act REMEDY Having found that Respondent has engaged in certain unfair labor practices I find it necessary to order it to cease and desist and to take certain affirmative action de signed to effectuate the policies of the Act MACHINISTS DISTRICT 186 (FEDERAL MOGUL) 539 As a remedy the General Counsel has requested that Respondent Union be ordered to make Herman Randall Humphreys whole for the loss of earning suffered as a result of the Union s failure to process his grievance beyond the second step The General Counsel recogniz ing that Humphreys might not have prevailed had the grievance been properly pursued argues that any doubts about the ultimate disposition must be resolved against the Union Therefore the General Counsel requests that I conclude that Randall s grievance would have been meritorious and require the Union to pay the difference in pay between Randall s rate and the rate of one of the jobs to which he may have been entitled I have read the several cases cited by the General Counsel however and I do not agree that they are pre vailing in this instance 6 In both cases backpay was awarded to the employee for the union s failure to prop erly represent the employee in the grievance In one case the union failed to pursue the grievance at all and in the other case the union failed to process the grievance beyond the first step But in both cases the backpay order had a time in which it would terminate In one case it was by the eriployee obtaining substantial em 6 The General Counsel relied on Auto Workers Local 417 (Falcon In dustries) 245 NLRB 527 535-536 (1979) Union of Security Personnel of Hospitals 267 NLRB 974 (1983) ployment and in the other case the employee had al ready been reinstated and that was the cutoff date of the backpay award In this case the employee Humphreys made a bid on two separate jobs One of the jobs paid $1 more per hour than Humphreys was then making and the other job of tool and dies trainee paid $2 an hour more than Hum phreys was them making Humphreys was not promoted to either of these jobs His grievance states that he was discriminated against when he was not given the tool and die trainee job or tool grinder job Thus it is appar ant that his grievance covered both jobs I have no way of knowing whether Humphreys would have prevailed had his grievance been processed nor do I have any way of knowing which of the two jobs he might have been given Therefore anything that I do in this matter regarding backpay would be purely speculative More over if I granted backpay in this matter as the General Counsel requests I cannot foresee when such a backpay order would ever terminate An increase in an hourly rate is permanent and such a remedy in this matter would be too harsh Therefore I shall not grant any backpay award Moreover I see no reason the entire membership of this Union should suffer monetarily be cause of the unfortunate actions and statements of one in dividual [Recommended Order omitted from publication ]