Laborers' Local 1191, Laborers International Union Of North America, Afl-Cio (S J Groves & Sons Co.)

1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laborers' Local 1191, Laborers International Union of North America, AFL-CIO (S J Groves & Sons Company) and Charles P Owczarzak Case 7-CB-7006 February 10, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On September 20, 1988, Administrative Law Judge Walter J Alprin issued the attached deci Sion The General Counsel filed exceptions and a supporting brief and the Respondent filed a cross exception, a supporting bnef, and 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed i The General Counsel has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra five 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 versing the findings Joseph P Canfield Esq for the General Counsel Christopher P Legghio Esq (Miller Cohen Martens & Ice), of Southfield, Michigan for the Respondent DECISION STATEMENT OF THE CASE WALTER J ALPRIN, Administrative Law Judge On a charge filed November 3, 1986,' General Counsel issued a complaint on February 12, 1987, alleging that Labor ers Local 1191, Laborers' International Union of North America, AFL-CIO (Respondent or the Union) engaged in unfair labor practices within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the National Labor Rela Lions Act (the Act) by failing and refusing to timely process a grievance by its gross negligence in processing the grievance in a perfunctory and arbitrary manner Hearing was held at Detroit, Michigan, on September 8, 1987 Counsel for both parties presented oral closing statements, and counsel for Respondent also filed a bnef i All dates are in 1986 unless otherwise indicated On the entire record of the case and from my obser vation of the demeanor of the witnesses I make the fol lowing FINDINGS OF FACT Respondent is a labor organization within the meaning of the Act, and is exclusive bargaining agent of all labor er employees and leadmen employed by S J Groves & Sons Company (the Employer) At all pertinent times the Employer has engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act The Employer was at all times herein engaged in con struction of a bridge at Zilwaukie Michigan, in regard to which it entered into a Project Agreement that involved craft representatives, including Respondent Article IV of the agreement, Management Rights, provides in part as follows The employer shall retain full and exclusive author ity for the management of its operations may direct the work force, at its sole prerogative includ ing hiring, selection of foremen, promotion, transfer, layoff or discharge of its employees The employer shall be the judge as to the satisfac tory performance of work by an employee and may terminate the employment of any employee whose work or attendance is unsatisfactory Article XIV, Grievances provides in part In the event of any dispute arising out of the appli cation or interpretations of this Agreement, exclu sive of jurisdiction on work, the same shall be set tled by means of the grievance procedure herein after set forth No grievance shall be recognized unless in writing and called to the attention of the Employer by the Union or the attention of the Union by the Employer within five (5) working days after the event on which grievance is forwarded or occurred [Empha sis added ] Charles P Owczarzak (the Charging Party) is a member of the Union and has been employed in various laborer capacities on the Zilwaukee Bridge project by various employers He had been employed by the Em ployer since about 1983 primarily engaged in laborer work pouring and compacting cement Compacting is the process of working wet cement to avoid honey combing,' which is the occurrence of gas bubbles within the wet concrete, leaving unwanted spaces in the cured concrete which threatens its integrity On September 9 Owczarzak was discharged by the Employer because of unsatisfactory work specifically because of unsatisfactory pours resulting in honeycombs, occurring September 4 or 5, or both In anger, Owczar zak stated that he no longer wanted to work for the Em ployer The other three members of the team involved in these pours walked off the job in protest and pursuant to the terms of the Project Agreement also were dis charged Owczarzak testified that there was no union steward at the jobsite to whom to appeal Owczarzak knew that 292 NLRB No 113 LABORERS LOCAL 1191 (S J GROVES & SONS) 1023 Billy Mann who was at the jobsite at the time, had been a steward, but testified that at the time Mann was a fore man, and not a steward John Mills, the union field rep resentative for the project, testified that at the time Mann was not a foreman, was in fact the steward, was working the same shift as Owczarzak and was available to help The foreman of the crew, Terry Hawley, who was one of those discharged, told Owczarzak that he was in the good graces of Michael Hillyer, the Employer s project manager, and would speak to him regarding get ting their jobs back The evening of the following day, Wednesday, September 10, Hawley telephoned Owczar zak and reported that he had been unsuccessful, though another member of the team, Ron, a laborer apprentice, had been reemployed On Thursday, September 11, Owczarzak attempted to telephone Elijah Washington, the Union s business agent, in Detroit He did not attempt to contact John Mills, the union field representative responsible for the Zilwaukee Bridge project, because of personal animosity he be lieved existed between them When told that Washington would not be available until Monday, September 15, Owczarzak told the person answering the telephone that he had been fired That person told Owczarzak he would have to speak with Washington Washington testified that six or seven other union representatives covered the office in his absence, but Owczarzak made no attempt to speak to anyone else after identifying the problem Owczarzak s testimony was that he was unaware of the Project Agreement, and believed, as per the employ ee handbook he had received upon joining the Union, that he had 30 days in which to submit a grievance On Monday, September 15, he telephoned Washington Owczarzak s description of the ensuing conversation was that Washington was not helpful that he hemmed and hawed and would give no definite answers Washington s testimony was that Owczarzak had told him he had screwed up some jobs but kept insisting and attempt ing to manipulate Washington to commit himself to get his job back Washington told Owczarzak that the party to deal through was Field Representative Mills, and that Washington would call Mills When asked why he took so long before calling Owczarzak responded that he would not have attempted to grieve the discharge had he not learned of the reemployment of Ron, the apprentice Washington telephoned Mills the same day, September 15 and told him to drop everything else and to see the employer at Zilwaukee Bridge to try to get Owczarzak s job back Mills called him back later the same day and reported that the Employer refused to rehire Owczarzak Washington told Mills to call Owczarzak, advise him of this, and to go back to the Employer the following day Mills did not call Owczarzak, but testified that the fol lowing day, September 16, he returned to the Employer, spoke at great length with Project Manager Hillyer and that when Hillyer persisted in his refusal to rehire Owc zarzak asked him then to at least discharge Ron so that neither of them would be reemployed, which Hillyer also refused Hillyer, on the other hand, recalls only that Mills vis ited the worksite on Monday, September 15 which was his usual visiting day, and that during a general conver cation had asked that Owczarzak be put back to work, which he refused Hillyer did not recall any other meet ing, the following day or otherwise, regarding Owczar zak Mills telephoned Washington on the day of the second visit to which he testified, Tuesday, 16 September, to report lack of success Washington directed Mills to tele phone Owczarzak and advise him Mills telephoned Owczarzak that day and reported he had been unable to get his job back He also advised that it was the last day for filing a written grievance, and that Owczarzak should prepare one immediately and mail it that day to the Union in Detroit, to Washington s atten tion, which Owczarzak then did There is no record of when the grievance arrived in Detroit, but on September 22 Washington sent it to Francis Hovey, the Union s Michigan District Council's business manager, at Lansing, Michigan, "requesting that you submit the grievance of Mr Owczarzak under the S J Groves Construction Agreement ' Washington tes tified that he made this request knowing that the griev ance was filed late and believing it to be indefensible, in the hope that a request by the District Council would be given greater deference by the Employer On September 26, on behalf of the District Council, Hovey sent Hillyer a letter by certified mail and with return receipt request ed, to officially notify you a written grievance has been filed against you by Charles P Owczarzak and Laborers Local Union 1191 By letter dated September 29, Hillyer responded, citing the time provisions of article XIV of the Project Agreement, the September 9 date of discharge, and the September 29 receipt of the grievance The letter con cluded `Please explain, as I see no grounds for continu ation of this matter as it falls outside of the limits spelled out in the Project Agreement' On September 30, there was a telephone conversation between Hovey and Hil lyer Hillyer prepared a memo to file regarding the con versation, as follows Telephone conversation with Mr Hovey about Charles Owczarzak Hovey said he was at meetings the week of the layoff or discharge He was sick the following week also Owczarzak didn t file a com plaint until 9/16/86 with Local 1191 We didn t recieve [sic] any official document until 9/29/86 John Mills had said the union wanted him back to work in casual conversation No official meeting My position to Hovey although he was out of town to meeting and then sick Was that the complaint came to [sic] late as spelled out in the Project Agreement and that a meeting as he requested at this time would be to [sic] late An average of 25 to 30 laborers have been employed on the project over the last 4 to 5 years No written grievances have been filed by laborers though disputes have been handled and 3 months prior to the Charging Party s discharge another laborer was discharged and then reinstated after conference Among all the crafts 1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD covered by the agreement, only one or two written grievances have been filed with the Employer Respondent offered hearsay evidence by union officials as to the Owczarzak s prior work record which was ac cepted, over objection, subject to and specifically upon representation by counsel for Respondent that admissable evidence thereof would be forthcoming No such evi dence was presented and hearsay regarding Owczarzak s work record as offered by union officials is ordered stricken Discussion Counsel for General Counsel argues that the language of the agreement required a written grievance to be called to Employers attention within the 5 day period, while counsel for Respondent argues contra, that while notice must be given within that time the writing need not specifically be submitted within the period This is a nonissue,2 as the determinative question here is, in the words of Vaca v Sipes, 368 U S 171 (1967), and its nu merous progeny, whether the union s action was arbi trary, discriminatory or in bad faith (Id at 190 ) Notwithstanding that Owczarzak originally voluntarily stated he no longer wished to work for the employer and only later changed his mind, that the complaint was not immediately made to the shop steward on the jobsite, and that Owczarzak did not make his oral complaint to the Union until next to the last day, the fact is that the Union had sufficient time to properly process the matter Washington and Mills testified that Mills was directed to drop whatever he was doing and go to the jobsite, which he did speaking to the project manager in what Mills described as a conversation in length The tests mony of the project manager however, was that Mills appeared on the day he usually visited the jobsite and just asked if he-if we could get Owczarzak back to work The project managers notes of a later telephone conversation with the representative of the District Council confirmed that he thought the conversation with Mills had been no more than casual Mills also testified that at Washington s direction he returned to the jobsite the following day to reiterate the appeal, but that the project manager refused to reconsid er, or to consider molifying Owczarzak by reversing his decision to rehire the apprentice on the team The project manager however, had no recollection of such a second meeting The credibility of Mills testimony as to the special of forts he made prior to his directing Owczarzak to mail the grievance to the Union rather than delivering it im mediately to the Employer is highly relevant though as later developed, not determinative I do not accept Mills testimony He is an individual with a personal interest in E If reversed on this point I would enter a finding that the clear terms of the agreement required both that the grievance must be in writing and that it i e the written grievance must be called to the employer s atten tion within the time period the outcome of this proceeding His testimony has been controverted by that of the project engineer who has no personal interest in the outcome of this proceeding I find as a result and through personal observation of the witnesses that Mills made no special effort but merely visited the jobsite in his usual manner and at his usual time, that he no more than casually asked that Owczar zak be rehired, and that he did not return the following day with any further request The Board has consistently held that simple negli Bence is not such purposeful conduct as to constitute violation of the Act Cf Painters Local 1310 (Reliance Electric), 270 NLRB 506 507 (1984) Though a union may not ignore a meritorious grievance, or process a meritorious grievance in a perfunctory manner, it is granted broad discretion in deciding which grievances to pursue and the manner in which to handle them Service Employees Local 3036 (Linden Maintenance) 280 NLRB 995 (1986) The facts here show that though the union representa tive did not make as strong an appeal as he would have us believe and did not make a second attempt the fol lowing day as he would have us believe, he did in fact raise the grievance with the Employer His direction to Owczarzak to mail the grievance to the Union rather than delivering it that day to the Employer, or other ac tions or inactions, have not been shown to have been ar bitrary discriminatory, or in bad faith I find Mills error in this regard constituted no more than simple negli gence and not actionable as a violation of the Act There is insufficient evidence to establish that he pur posely misled Owczarzak, or deliberately gave bad advice Auto Workers Local 167 (General Motors Corp), 286 NLRB 1167 (1987) The remaining defenses of Re spondent Union therefore need not be considered CONCLUSIONS OF LAW 1 Laborers Local 1191 Laborers International Union of North America AFL-CIO is a labor organization within the meaning of the Act 2 S J Groves & Sons Company is engaged in com merce within the meaning of the Act 3 The General Counsel has not established by a pre ponderance of the evidence that the Respondent violated the Act On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed3 ORDER The complaint is dismissed in its entirety 3 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