Allied Food Workers Dist. 103

National Labor Relations Board - Board Decisions

Aug 27, 1969

178 N.L.R.B. 228 (N.L.R.B. 1969)

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allied Food Workers District Union No. 103
affiliated with Amalgamated Meat Cutters &
Butcher Workmen of North America , AFL-CIO
(General Foods Corporation , Maxwell House
Division ) and Emmy Lu Hutson and Annabelle
Frances Warchol . Cases 23-CB-846 and
23-CB-846-2
August 27, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On August 19, 1968, Trial Examiner Boyd
Leedom issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed, as set forth in the attached Decision.
Thereafter the General Counsel filed exceptions to
the Decision, together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint be, and it hereby is,
dismissed in its entirety.
'We agree with the Trial Examiner 's conclusion that the complaint be
dismissed , but solely on the ground that the General Counsel has not
established by a preponderance of the evidence that Respondent handled
the grievances in the manner which it did because of the grievants'
nonmembership in the Respondent Union It is unnecessary to decide
whether the grievances were meritorious.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BOYD LEEDOM, Trial Examiner: These consolidated cases
were tried in Houston, Texas, on June 5 and 6, 1968.
Separate charges, by the individuals named in the caption
hereof, were dated and filed April 12; and the document
containing the order consolidating the cases, and the
complaint issued on the charges, is dated May 10; all in
1968.
The thrust of the complaint as to Warchol is that the
Union failed and refused to process a grievance (filed by
her complaining of inequities in overtime assignments)
because she was not a union member; and as to Hutson
that the Union refused to process a grievance she filed
(complaining that her employer failed to award her a
promotion to which she was entitled by reason of
seniority) because of union interference inasmuch as she
was not a union member; all in violation of Section
8(b)(l)(A) and 8(b)(2) of the National Labor Relations
Labor Management Relations Act, as amended.
Respondent's Answer denies specifically the paragraphs
of the Complaint alleging restraint and coercion of the
employees in the exercise of Section 7 rights under the
Act, and affirmatively avers it has not engaged in any acts
attempting to cause discrimination or of interference with
the rights of the Charging Parties Warchol and Hutson.
At the opening of the trial counsel for the Respondent
moved to dismiss the complaint for the reason it fails to
state an actionable cause in that there is no allegation that
Respondent acted in bad faith, or was unreasonable,
capricious or arbitrary respecting the grievances filed by
the Charging Parties. This motion was denied and the
case was tried on the issues raised by the allegations of
the complaint and the denials contained in the answer.
On all the evidence adduced, on my observation of the
witnesses as they testified, and on careful consideration of
the briefs filed, I make the determination, on the basis of
the findings of fact and conclusions of law hereinafter set
out, that the General Counsel has failed to prove by a
preponderance of the credible evidence, any violation of
the Act by Respondent and therefore recommend that the
complaint be dismissed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE JURISDICTION OF THE BOARD THE LABOR
ORGANIZATION
Respondent admits, and I find, that the allegations of
paragraphs 3, 4, and 5 of the complaint are true,
respecting the nature and the extent of the business and
commerce of the Employer Maxwell House Division of
General Foods Corporation; and the nature of the
Respondent Union; and therefore conclude that said
Maxwell House Division is an employer engaged in
commerce; and that Respondent is a labor organization;
within the meaning of the Act; and that this proceeding is
therefore within the jurisdiction of the National Labor
Relations Board.
If. THE ALLEGED UNFAIR LABOR PRACTICES
A. Warchol's Grievance
On March 5, 1968, Annabelle Warchol filed a grievance
growing out of claimed discrimination in the failure to
grant her a proper share of overtime because of a
systematic favoritism of chief steward of the Union,
Onoray Davis. This, as she charged, came about in the
implementation of the overtime plan negotiated between
the Employer and Respondent Union, bargaining
representative of the employees in the unit of which she is
a part.
The Warchol written statement of the grievance,
General Counsel's Exhibit 3, shows the signature of
Warchol on the line provided on the form for the grieving
employee's signature. In addition however to her
178 NLRB No. 41
ALLIED FOOD WORKERS DIST. 103
signature, the names of other employees appear as
signatures in blank space on the form, following the lines
provided for the statement of the grievance, and near the
signature of Warchol.
The testimony of various witnesses create something of
a dispute as to whether this grievance was the grievance of
Warchol alone or of the other employees whose names
appear near hers on the grievance form. This issue is
significant to this extent If all the employees whose
names appear on the form were actually grievants, the
Union's withdrawal of the grievance (if detrimental to
employees' rights) would have been detrimental to all the
employees and not Warchol alone and therefore
detrimental to union employees as well as nonunion
employees. For the evidence shows, and I find, that
certain of the employees whose names appear alongside
that of Warchol, are union members One, Frieda
Heuermann, is a department steward. Thus such
circumstance tends to establish that the Union's action
respecting the grievance was not based on union
considerations.
Warchol testified that she did not know how the other
signatures got on the grievance. Counsel for the General
Counsel argues that this circumstance plus the fact that
the form shows at the appropriate place that the grievance
is "From" Warchol makes it hers alone. This however is
not persuasive and from all the evidence adduced,
particularly the unexplained appearance of other
signatures on the grievance, of persons whose right to
overtime work would be in jeopardy the same as
Warchol's right, if the grievance were valid, requires a
finding which I make, that this was actually the grievance
of all the employees whose names appear on the grievance
form near the signature line. Counsel for the General
Counsel notes in the brief that none of such persons whose
names appear there testified. Inasmuch as the burden is
on the General Counsel to establish his case by a
preponderance of the evidence the failure to call these
witnesses to refute the reasonable conclusion drawn from
the written instrument that they were grievants, must be
charged to the General Counsel.
The record reveals only in a general way the company
practice on assignment of overtime, established by the
contract between the Union and the Company. The
overtime assignment system applies in 6-month segments
with the senior employee at the beginning of each 6-month
period being offered the first overtime available. This
employee is then shown on the overtime list to have had
the number of hours of overtime actually worked; or if he
refuses the work he is charged double the hours of
overtime actually worked by whoever took the assignment.
Thus he becomes the high person insofar as overtime
assignments are concerned, and the last to get another
assignment . The next offer of overtime goes to the person
at the bottom of the list and this employee is charged
either the amount of overtime he works, or if he refuses
the assignment, double the overtime involved; and he
takes a position near the top of the list according to the
amount of overtime charged to him. Each successive
assignment then goes to the person at the bottom of the
list which is graded down, not according to seniority but
rather according to the number of hours of overtime
charged each employee. If however the person at the
bottom of the list, entitled to the overtime work being
offered, is absent for various reasons, and the overtime
cannot be offered to him because of his absence, he is not
charged with double the amount of overtime involved for
nonacceptance, but is excused and remains at the bottom
229
of the list entitled to the next offer. One of such excused
absences is absence due to activity as a union official.
Other absences relieving the employee from a charge of
unaccepted overtime are jury duty, sickness and any other
personal leave granted by the Employer in writing.
The record is not entirely clear as to all of the details
of this overtime system, either from the testimony of
witnesses relating thereto, or the statement made to the
record by counsel for Respondent with which there was
acquiescence by all parties. The foregoing explanation
however appears to be correct insofar as the record
reflects the system. It furnishes adequate background for
an understanding of the substance of the Warchol
grievance.
Onoray Davis, Respondent's chief steward, maintained
preferred status respecting overtime assignments because
of the great amount of time he was absent from duty on
union business as chief steward. The testimony reveals
that he was granted by the Company, under the
collective-bargaining agreement with the Union, 10 hours
absence weekly for the performance of union business, and
was entitled to take as much more than 10 hours as his
position as union steward required. The time in excess of
10 hours lost from his regular employment, was
compensated by the Union. Nothing in the agreement
respecting overtime work, or in the evidence adduced,
makes clear whether Davis should have been excused from
offers of overtime that came to him during absences in
excess of 10 hours on union activity, but under the
practice it appears he was excused. Furthermore this
uncertain factor is not relevant to the issues here
inasmuch as the General Counsel' s case is not structured
to the point. Thus no evidence was adduced to show, and
none tends to show, why the Company's practice of
applying the overtime formula to both periods, should not
apply to both; or any rational basis for making a
distinction between the 10 hours allowed Davis by the
Company for union business , and the weekly excess, if
any, over the 10 hours. If the practice actually does differ
as to the two periods, or if there is a substantial basis for
distinction, it was the burden of the General Counsel to
make the proper showing.
The Warchol grievance never got beyond Step I. The
procedure contained in the collective-bargaining
agreement , provides that in Step I the grievance shall be
reduced in writing and shall be "taken up by the Chief
Steward. . ." (Onoray Davis, in this case) and other
specified persons including one or more management
representatives, and if not settled in 7 days the grievance
shall pass to the next step. Whether under either the
practice or the contract, attendance of any other person
than the steward and management representative, is
compulsary. does not appear from the evidence.
A few days after the Warchol grievance was filed in the
personnel office of the Employer, Jim Luster, assistant
personnel manager and Onoray Davis, chief steward, met
to consider accumulated grievances. Davis' testimony
stands as the only explanation of the disposition made of
the grievance at this meeting with Luster. He advised
Luster that the thrust of the grievance, that is, "that he
(Ray Davis) be charged with the overtime hrs., he is
excused by the Co. & paid by the Union" did not
constitute a valid grievance because he, Davis, was
excused from the application of the overtime rule when on
union business. Davis and Luster than completed a "Step
I Meeting" form, (appearing on the reverse side of the
statement of the grievance, G.C. Exh. 3) Davis signing as
chief steward and J. Luster signing as personnel
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative In the appropriate box an X indicated that
the matter was "Settled" rather than "Passed to Step II "
Under the heading "Settlement" on this form appears the
handwritten notation "Withdrawn at Union Request."
It is this disposition of the grievance that provoked
Warchol to file the charge in the instant proceeding. The
record is clear that she was not present at the meeting
when the grievance was withdrawn, and insofar as the
evidence shows, no other person was present with Davis
and Luster.
Counsel argues, as an element of the violation, that the
indication the grievance was "Settled" in Step I is
erroneous because Warchol testified the grievance was not
settled Obviously this interpretation placed on the word
"settled" implies that if the case had been "settled"
Warchol would have been granted some relief This
interpretation does not seem warranted. For "settled,"
thus interpreted, would preclude final settlement of a
grievance in Step I except where relief was granted the
grievant Perhaps a better word would have been
"Denied", but regardless of the implications of the word
"settled" as used to indicate the disposition made of the
grievance, the argument seems beside the point So does
the other argument that Warchol was never granted a
hearing in Step II of the grievance procedure For the
crucial question is whether the grievance was stopped in
Step I because Warchol was not a union member
It is the thrust of the Respondent's defense that such
preferred treatment as was accorded Davis with respect to
overtime assignments, came to him rightfully under the
agreement made and entered into between the Union and
the Employer, and that the grievance thus necessarily
lacked merit, based as it was on a proper implementation
of the system in effect for overtime assignments; and that
the grievance was therefore properly withdrawn I find
and conclude that the evidence substantially supports this
defense; and that the General Counsel has failed to
establish by a preponderance of the evidence either (1)
that the grievance was meritorious or (2) that the
withdrawal was because of Warchol's nonmembership in
the Union.
Counsel for the General Counsel concedes that his case
consists of two parts, (1) that the Union failed to process
the grievances (a part of the case well established if by
"process" it is meant that the grievance be taken through
all the steps including arbitration), and (2) that the
Union's failure and refusal to process the grievance was
because Warchol was not a member of the Union In his
brief, counsel makes it clear that apart from
nonmembership in the Union there are "no arbitrary,
irrelevant or invidious considerations involved in the case.
." This eliminates all question as to whether Onorary
Davis withdrew the grievance because the advantage he
enjoyed personally in overtime work assignments was
placed in jeopardy. Inasmuch as the chief steward had this
personal interest in the subject matter of the grievance, it
would have been discrete for the Union to arrange for the
handling of the grievance by some other union official, but
this failure in the light of the lack of merit in the
grievance, cannot in my judgment convert this matter into
an unfair labor practice, and as previously indicated the
case was not tried on this theory and evidence was not
adduced to support unfair representation because of the
chief steward's personal interest in the subject matter
Considerable emphasis was placed at the trial on the
failure of Respondent to have Warchol present in the Step
I consideration of the grievance, and its withdrawal in her
absence from the session This is also stressed in the brief
Granting, however, that it would have been tactful and
considerate handling of the grievance, to have invited
Warchol to be present at the Step I meeting, it is not
clear from the record and I cannot make a finding
supported by credible evidence, that the failure to do so
constituted a violation of either the rules or the practice
respecting grievance handling. Again, this lack of finesse
in handling the grievance, in the light of its lack of merit,
and even when considered along with such other
circumstances as might point toward a violation, cannot
be treated as adequate support for a finding of an unfair
labor practice.
While a union's methods in handling grievances for
nonmembers should often be viewed critically, on the
other hand there must be a preponderance of evidence of
discriminatory treatment before an unfair labor practice
can be found; otherwise the machinery set up for handling
a heavy flow of complaints, will become unduly
encumbered
I fail to find substantial evidence to support a finding
of an unfair labor practice here In reaching this decision
some weight is given to the fact mentioned early in this
discussion that the totality of the evidence, especially the
written document itself, leads to the conclusion that the
Warchol grievance actually was made not only for
Warchol, but also in behalf of some union member
employees whose interests respecting the subject matter of
the grievance, were the same as Warchol's
Counsel for Respondent makes two other points in
defense Neither is of great force, but both tend to
becloud the General Counsel's case. The first point rests
on this fact It would be very difficult to ascertain from
the record, as made, whether Warchol was in her
department long enough to be entitled to overtime work
when she filed her grievance. This is due to a discrepancy
in her testimony at the trial and in her pretrial affidavit, a
discrepancy which created general confusion that engulfed
not only Warchol but counsel for the General Counsel as
well This defect in the case was not necessarily a
deliberate falsification but an uncertainty as to a fact that
surely could have been cleared easily by offering company
records as to the time Warchol entered the department.
The second point is that th;, Union had processed other
grievances for Warchol when she was not a union
member. The evidence on this point, however, is not such
as to add substantially to Respondent's other defenses
B The Hutson Grievance
The allegations of the complaint respecting Hutson are
dismissed for the same basic reason as the Warchol
grievance, that is according to the evidence, the grievance
was without merit, not entitled to processing beyond Step
I; and it was not because of Hutson's lack of membership
that the Union did not process it further.
The evidence reveals, and I find, that an opening
occurred in a laboratory technician's job on March 7,
1968 Hutson and several other employees applied for the
promotion. Under the terms of the collective-bargaining
agreement the position would go to the senior employee
who possessed all the necessary qualifications including
certain adequate "test scores" obtained on examinations
taken before the notice of the job vacancy "came down"
from a 3-day posting period. It is conceded that Hutson
lacked test scores on two of the required examinations at
the time the posting of this job "came down "
The evidence reveals further, and I find that Hutson
had gone to the personnel office of the Company to take
ALLIED FOOD WORKERS DIST. 103
the two tests (which she later took obtaining satisfactory
scores) prior to the posting of the job and in ample time
to meet the requirements, but was told by management
that she could not take the examinations then and would
have to return at a later date The first of the two
examinations was taken on March 12, and the second on
March 13, both too late to meet requirements Hutson's
effort to take the tests on the earlier date was not
specifically related to the job vacancy involved here, but
was made because she anticipated similar jobs would be
available through the construction of a new plant and a
greatly enlarged operation She could have taken the
required examinations any time over a period of many
weeks prior to the posting of the job in question.
There is no substantial dispute respecting any of the
findings set forth in the last two paragraphs. The
complaint does not run against the Employer and there is
no evidence even tending to show collusion between the
Union and the Employer respecting the deferred dates for
Hutson's two examinations.
The evidence further reveals, and I find, that the job
was awarded to a union member, Charles T Jeter over
whom Hutson was senior. Other senior applicants were
also found not qualified. At the time the posting of the
job "came down" from the bulletin board Jeter, like
Hutson, was also lacking in certain required test scores
The collective-bargaining contract however provides as
modification of the rule requiring the applicant to have
the adequate scores before the end of the posting period,
that if an applicant is away on excused absence during the
posting period, and does not have adequate test scores, he
shall have 48 hours in which to take the tests and if
possible obtain the satisfactory scores It is conceded that
during the posting period for the job involved, Jeter was
on excused sick leave. In the permissible time following
the posting of the vacancy, he took the tests and obtained
the proper scores, thus becoming the senior employee
qualified and eligible for the promotion under the
established rules
Failing to be awarded the job, Hutson filed the
grievance in which she sets out in abbreviated form
essentially what occurred as hereinbefore recited She
inserted the word "discriminating" on the line of the
grievance form providing for the "alleged clause
violation " No contract clause is specified and her
allegation that there was discrimination does not indicate
whether it was by the Employer or the Union or both
As appears from the foregoing recital of the evidence,
and as I find and conclude, the award of the promotion to
Jeter was made according to the contract provisions, and
there was, therefore, no merit to Hutson's grievance. As
in the case of the Warchol grievance, this one was
withdrawn by Onoray Davis on behalf of the Union, when
the grievance came up for consideration by Davis as
steward, and J. Luster, personnel representative.
The Hutson grievance presents a problem not present in
the Warchol grievance. It appears that Hutson had
enlisted the aid of a job steward in another department in
connectionwith her grievance -David Hobbs, apparently a
friend He had no authority in the matter but was willing
to advise her He arranged a meeting, after the grievance
had been withdrawn, with high level management where
he, Hobbs, and Hutson were present. Onoray Davis could
have been present but was not When Hobbs was advised
by management at this meeting that the award of the job
had been made according to the contract and that there
was no merit to the grievance, Hobbs seemed to have held
a conflicting view and stated that the matter might have
231
to be taken to the Labor Board. This contrary view of
Hobbs was held notwithstanding he acknowledged a
sequence of events in connection with Hutson's action
respecting the tests and the other contract provisions,
essentially as hereinbefore set out. He testified that in his
effort to lend assistance to Hutson, he talked to Davis and
asked why he had not pressed the Hutson grievance
further; and that Davis responded "he had no intentions
of fighting for any damn scabs " While the precise time of
this statement cannot be fixed, the evidence indicates, and
I find, it occurred after Hutson had advised Hobbs that
her grievance had been withdrawn.
Davis denied that he made such a statement Resolution
of the credibility conflict cannot be made easily, but I find
that Davis did make some such statement as that
attributed to him by Hobbs. The Davis denial was not
made with great conviction and there is a hint of evasion
in his somewhat loquacious statement on the subject
Furthermore the statement attributed to Davis is one that
quite naturally could be made under all the circumstances
involved, as hereafter appears.
Notwithstanding my finding that Davis made
substantially the statement attributed to him, I do not
conclude it establishes that the Hutson grievance was
actually withdrawn because Hutson was not a union
member.
Significantly the Davis statement came after the fact of
the withdrawal of the grievance. It therefore was not a
part of the act of withdrawal. Even though it can
reasonably be argued that the statement does reveal the
purpose and state of mind of Davis at the earlier time of
the withdrawal of the grievance, in my judgment it is
much less probative on the issues of the case than if it had
been made prior to the time or at the time of the act of
withdrawal. Intermingled with the conclusion just stated is
the provocation Davis had for some such statement that
inevitably grew out of the circumstances in which it was
made Thus he found himself in a conflict with another
union steward who lacked all official connection with the
problem. The situation at best was troublesome, without a
fellow union worker adding problems. Vexed as he must
have been when confronted by Hobbs on Hutson's behalf,
it is understandable that he would resort to an expedient
reason to support a decision made on a meritorious basis
as hereinbefore set forth, when such reason, though not
real, would likely be most persuasive between union
members. The basic foundation of this viewpoint is of
course the fact that according to the record of evidence
introduced in this case the Hutson grievance lacked merit
and Davis had good reason not to process it beyond Step
1. In my judgment the Davis "scab" statement made
under the circumstances outlined, and resting on the
somewhat uncertain foundation of a difficult credibility
resolution, is not sufficiently substantial to support a
finding of an unfair labor practice. It cannot overcome my
conclusion, based on all the evidence that the grievance
was stopped at Step I because it lacked merit, and for no
other reason. Because of the inadequacy of the evidence
adduced by the General Counsel this grievance, like that
of Warchol, should be and hereby is dismissed.
III. CORRECTION OF TRANSCRIPT
Counsel for the Respondent, pursuant to an order
heretofore entered, has proposed numerous corrections to
the transcript of testimony herein. Counsel for the General
Counsel has agreed that such corrections should be made;
and good cause appears for making them. It is therefore
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered that all of the corrections noted in the' changed and corrected as fully as if said proposed changes
Respondent's Proposed Compliance With Order for and corrections were written into and made parts of the
Correction of Transcript, dated August 9, 1968, be and said record of testimony herein.
the same are hereby made; and the transcript is hereby