United Steelworkers Of America And Its Local 8888, Afl-Cio (Newport News Shipyard And Dry-Dock Co./Tenneco)

348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Steelworkers of America and its Local 8888, AFL-CIO (Newport News Shipyard and Dry- dock Company/Tenneco) ' and Clyde A John- son Case 5-CB-5790 March 20, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 20, 1988, Administrative Law Judge Thomas A Ricci issued the attached deci- sion The General Counsel filed exceptions and a supporting brief, and the Respondent filed a memo- randum brief in opposition to the General Colin sel'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, 2 and conclusions3 and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed t The name of the Respondent appears as stated in the amended coin plaint 2 In sec III par 2 of his decision the judge found that Respondents grievance committeeman Willie Futrell discussed Charging Party Clyde Johnson s grievance with Futrell s superiors the Respondent s grievance chairman Robert Moore and the Employers manager of labor relations Edward Merkling In fact Merkling is not Futrell s superior and the two men never discussed the Johnson grievance In sec III par 15 the judge found that Moore testified that this was the first time in Moore s expen ence that an employee had admitted a theft Moore actually testified that he believed this was the first time every work rule violation alleged by the Employer was admitted by an employee We correct the errors which do not affect the outcome of the case 3 In agreeing with the judge that the Respondent did not arbitrarily fail to process Johnson s grievance in violation of Sec 8(b)(1)(A) of the Act we note that Merkling testified without contradiction that Moore con tacted Merkling and interceded on Johnson s behalf Merkling also testi fled that he informed Moore that Johnson had stolen Navy property and had resisted apprehension Futrell testified without contradiction that he saw the employee statements supporting the Employers case against Johnson and that Futrell conducted an independent investigation of the matter Thus the testimony of Merkling and Futrell fully supports the conclusion that Moore had a reasonable basis for his decision to with draw Johnson s grievance and was not acting arbitrarily when he made that decision Paula S Schaeffer Esq for the General Counsel Franklin G Shuler Esq (Copper Mitch & Crawford) of Birmingham Alabama for the Respondent DECISION STATEMENT OF THE CASE THOMAS A Ricci, Administrative Law Judge A hear ing in this proceeding was held at Newport News, Vir ginia on May 3 1988, on complaint of the General Counsel against United Steelworkers of America and its Local 8888, AFL-CIO (the Respondents or the Union) The complaint issued on January 22, 1988 based on a charge filed on August 17, 1987 by Clyde A Johnson (the Charging Party) The essential issue presented is whether the Union failed to process a grievance filed by Johnson and thereby violated Section 8(b)(1)(A) of the Act On the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER Newport News Shipyard and Drydock Company for whom the Charging Party worked, and whose employ ees are represented by the Union in collective bargain ing is engaged in the construction and repair of ocean going vessels During the 12 months preceding issuance of the complaint a representative period, in the course of its operations, the Company purchased and received at its Newport News Virginia facility products goods and materials valued in excess of $50 000 directly from points outside the State of Virginia I find that Newport News Shipyard and Drydock Company is an employer within the meaning of the Act II LABOR ORGANIZATION INVOLVED I find that United Steelworkers of America and its Local 8888 AFL-CIO are labor organizations within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICE On July 9 1987 Johnson who had worked for 10 years for this Company became involved in an incident which resulted in the Company s charging him with having violated four of the work rules then in effect- stealing company property refusing to follow instruc tions or directions of the foreman or supervisor, fighting on company property, and threatening intimidating or coercing another employee by word or act The rules stated that the employee could be discharged or other wise disciplined for violation of any of those rules The next day, on July 10, Johnson was suspended for 3 days because of those charged offenses After Johnson had re turned to work on July 15 he was discharged That same day with the assistance of Willie Futrell, a union committeeman Johnson filed a grievance through the Union After the first step in the established griev ance procedure there was a lengthy discussion between Futrell and Christine Woodson the Company s person nel representative The company representative refused to reinstate Johnson Futrell then talked the matter over with his superiors Robert Moore and Edward Markling 293 NLRB No 43 STEELWORKERS LOCAL 8888 (NEWPORT NEWS) 349 The result of the Union s investigation of the matter was that it decided to drop the entire grievance It decided not to process it to the second step of the established procedure, which would have been a further meeting and discussion between the Union and company repre sentatives Johnson was not returned to work We start by looking at what happened on July 9 Johnson was sent to a room on the ship to gather tools and things and to move them away It was a navy ship The room was also used as an eating place by the navy personnel As he was leaving Johnson picked up a pack age of potato chips and put them in his pocket It was property of the Navy As Johnson was leaving a naval officer told him to return the chips Johnson put it back and again started to leave The officer then asked who Johnson s foreman was, but Johnson did not answer and continued on his way out At that point the officer took Johnson s badge-which bore his identification number- from the man's suit It was the logical thing to do, for this service company employs 18 000 people all over the Newport News Shipyard, and it would have been diffi cult for that naval officer to locate Johnson later John son resented what the officer had done and snatched the badge out of his hands At this point the two men got into a fight with Johnson trying to keep the badge and the other man trying to get it back They went to the floor, hitting one another Then another man entered the room and separated them, and Johnson left the place It was what happened in that room that day that resulted in both the 3 day suspension and the discharge As stated above, after the lengthy discussions between Union Agent Futrell and Management Agent Woodson at the first stage of Johnson s discharge grievance, and after the higher officers of the Union had considered all the facts and conflicting contentions between the two parties as to exactly what had happened, the Union de cided to drop the grievance before going to the second step, which would had been further discussions about the merits of the discharge The complaint allegation that it was an unfair labor practice for the Union to have dropped that particular grievance at step two is double barried first, because it did so in retaliation against John son for not being a union member and second, because its action was Arbitrary Capricious Invidious' If the Union s reason really was the first no citation of author ity is necessary, for that would have been unlawful with out question at this late date M Eskin & Son 135 NLRB 666 (1962) As to the second contention the Gen eral Counsel cites a great number of cases decided by the Board, in which it found a union s action Arbitrary, Ca pricious and Invidious The trouble with these citations is that in an area such as this no two cases are alike and therefore no preceding citation really fits a later case In the light of the record in its entirety-not only the se lected, out of context selection made by the General Counsel-I find neither conclusionary allegation to have been proved in this case The General Counsels entire case focuses on the fact that one of the four work rules that Johnson was charged with having violated was rule 1-stealing com pany property Johnson was not a member of the Union Virginia is a right to work State Of the 18 000 employ ees covered by the contract between the Union and this Company, 45 percent are nonunion members-8100' The union agents who handle grievances testified they proc ess about 2000 grievances each year After examining the Union s comprehensive records-thousands of them-the General Counsel selected five grievance records and placed them into evidence In 1984 two employees-David Greene and David Knox-were discharged for violations of rule 1 theft and both were reinstated without backpay in the course of the grievance procedure In 1985 the same thing hap pened to another employee-Gregory Dane also in the grievance procedure In 1986 a man named David Braddy was also fired for theft and reinstated with no backpay via the grievance procedure The last company record offered by the General Counsel involved an em ployee named Jane Burton She too was discharged for violating rule 1 Her grievance was taken to step 4 of the grievance procedure, when the Union decided to drop the grievance altogether Burton was never returned to work The argument here is that if the Union succeeded in winning the jobs back for the first four of these employ ees, why did it not continue to push Johnson s grievance with the hope of winning it as it did the others9 Also, it could at least have gone to step 4 before dropping it as it did for employee Burton To me this last record tells another story Burton was an elected committeewoman of the Union for the janitorial service unit The Union chose not to go to arbitration for Burton, and abandoned her hopes If a union can drop the grievance of one of its elected officers, it shows that it is the merits of the griev ance that governs its decision, and not the membership or nonmembership of the grievant The only evidence of antiunion animus against John son-called direct evidence by the General Counsel-is the following Futrell the union agent knew Johnson was not a union member Twice in the past he had asked Johnson to sign up with the Union and the man had re fused Who knows how many others of the thousands of members in the workplace Futrell had also solicited with no results On July 15, after Futrell had talked at length with Personnel Manager Woodson to take back the dis charge notice, and while he was helping Johnson fill out the grievance papers, Johnson asked him, as Johnson tes tified Would it be in my best interest to join the steel worker " Futrell said Yes, and Johnson filled out a membership card then and there What the General Counsel proved by offering this testimony is that when the union officers decided to drop Johnson's grievance they knew he was a union member They also knew he had joined the Union of his own volition With this reali ty in mind what becomes of the complaint allegation that the Union dropped that man s grievance because he was not a member of the Union? But aside from the total absence of evidence of illegal purpose in the Union's treatment of this one grievance there is the most convincing evidence that this Union pays no attention to membership or nonmembership in the enforcement of its overall collective bargaining con tract From 1985 to the time of the hearing in this pro 350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ceeding the Union dropped 44 grievances involving dis charges after the first step in the grievance procedure, as it did Johnson s (As evidenced by the formal record documents received in evidence pertaining to those grievances, accepted by stipulations of all parties) Thirty of the forty four involved union members Only 14 in volved nonunion members Considering the percentage of members against nonmembers in this workplace, if anything those documents show that the Union is less sensitive to the interest of its members than it is to the nonmembers' We come to the alternative theory of the complaint, that the Union acted arbitrarily and that it treated John son's grievance unfairly and thereby breached its duty of fair representation to that one employee This argu ment rest entirely on a single out of context exhibit in this record When Johnson was suspended for 3 days on July 10, the Company s statement listed violations of four work rules as the reason Yard Regulations #1 Stealing company property or property of another employer (2) Yard Regulation #4 refusal to follow instructions or di rections of a foreman or supervisor (3) Yard Regulation #7 fighting on company property (4) Yard Regulation #11-Threatening, intimidating, coercing an employee by word or act That notice also read, Suspension pending discharge meeting When, on July 15 Johnson was actually discharged after consulations between com pany and union representatives, the notice spoke of only one work rule violation- Yard Regulation #1-Stealing company property or property of another employee (government property) If one looks only at that one exhibit in this record one cannot help asking-how could the theft of a package of chips worth only 25 cents justify a discharge in the minds of the union agents rep resenting Johnson Ridiculous says the General Counsel If that was all that was involved one could reasonably say the Union acted unfairly in dropping the grievance at an early stage of the proceeding The truth is as the record evidence considered in its entirety shows beyond question that the Company first suspended Johnson and then fired him, for much more misconduct than the mere taking of a package of potato chips To start with when Johnson was suspended-for vio lating all four of the enumerated work rules-the notice to read Suspension pending discharge This means, of course that the management were considering whether to discipline Johnson because of all four work rule viola tions Committeeman Futrel testified that when he dis cussed the suspension action with Woodson she argued all four rules violations in justifications of that action From his testimony We argued backwards and forward about the four different Yard Regulations And when she wrote the slip out, she wrote the slip out that day she sus pended him 3 days pending discharge for the four different Yard regulations on that day, and we dis cussed this backwards and forth And it was a pretty lengthy meeting Q Approximately how long? A I would say from 45 minutes to an hour And on the day of the discharge July 15, before John son decided to file his grievance, Futrel had another lengthy discussion with Woodson, trying to have the dis charge notice taken back Again from his testimony [i]n the meeting we argued about the different types of yard regulations that she had suspended him for and she went right down the yard regulations 1 all the way through 11, the ones she had cited And we argued backwards and forwards and at the end of that meeting she suspend ed him for yard Regulation 1 This is the clearest evi dence that Johnson was discharged for all four rule vio lations and not only rule 1 The discharge notice men tions only the theft, rule 1 But there is another docu ment received in evidence that is equally relevant In re checking the grievance after the step 1 discussion, the Company gave the Union a formal statement of its posi tion on the discharge question It is dated July 21 and details the fight Johnson got into with the company offi cer when he refused to surrender his shield badge All four rule violations are discussed in that document In the end it reads It is quite clear that the grievant violated Yard Reg ulation #1 in stealing the chips from the navy mess It is also quite clear that this theft precipitated the ensuring tussle and eventual restraint of the griev ant The grievant was discharged for just proper cause There is no violation of the labor agreement CONTRACTUAL PROVISIONS RELIED UPON Company Article 6-management Article 42-plant rules Yard Regulation # 1, #4, #7 and # 11 The only explanation for management to have referred only to rule 1 violation in the discharge notice must be that that was the only violation-straight theft-that Johnson admitted With the rules providing out right dis charge for theft 1 violation there was no need for the Company to have referred to any others of the rules vio lated It knew that discharge on that single basis could be defended to the end But the fact is that what the Union had to consider when deciding on how to proceed was the entire area of dispute between the parties in the grievance procedure What really determines this case is whether the Union acted rationally in the light of the entire picture of what had happened and on all of which the Respondent was relying Of course always in a situation like this each side will tend to argue conflicting versions of what happened the company tending to blame the employee and the union trying hard to exculpate him If the union officers decid ed in this case that the Company was right, it is under standable When the navyman removed Johnson s number badge from his suit and was holding it in his hands, he had no reason to tussle with Johnson It was Johnson who wanted that badge back Who assaulted whom? Who started the fight that led both men wres tling on the floor? It had to be Johnson , for it was he STEELWORKERS LOCAL 8888 (NEWPORT NEWS) who was trying to get back the badge Where rule 11 says, Threatening intimidating, coercing another em ployee by word or act it was meant to prohibit exactly this kind of thing It was Johnson who started the tussle as he called it with the other man Surely the union agents, before deciding to drop the grievance, un derstood that critical fact Whatever the detailed facts may boil down to, it cannot be said that the Union in this instance acted arbi trarily, or unfairly, in the way it handled Johnson s grievance In his brief the General Counsel cites many cases in which the Board found unions to have acted im properly in not processing a grievance beyond a certain stage But this is not a question of pure law It is an area of Board proceedings where no two cases are alike All kinds of disputes apse in the workplace People are dis charged for reasons without end If Johnson had at least denied trying to steal something from the Company, however small it may have been, at least the Union would have been in a position to dispute the entire charge against him Moore, the Union s grievance chair man said, without contradiction that this was the first 351 time in his extended experience that the employee had admitted the theft He said that was the major reason for the Union s ultimate decision I cannot fault him All things considered especially the great number of grievances involving many members of the Union that also had been dropped at the second stage of the proce dure I can only say that the General Counsel has not proved the case of capricious or unfair behavior by the Union in its handling of this grievance In conclusion, I shall recommend dismissal of the com plaint On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed' ORDER The complaint is dismissed ' 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