Allied Workers Local No. 256

National Labor Relations Board - Board Decisions

Dec 24, 1980

253 N.L.R.B. 969 (N.L.R.B. 1980)

ALLIED WORKERS I.OCAL NO 256
Local No. 256, International Molders' and Allied
Workers' Union, AFL-CIO-CLC (United
States Pipe and Foundry Company) and Inde-
pendent Workers Association. Case 10-CB-
3094
December 24, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELI.O, AND
ZIMMERMAN
On August 22, 1980, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in answer to the General Counsel's ex-
ceptions. '
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
t Ihe (i lci al Coullsel , laiiling that Reslpondent in it, briwf argl(ue
issues founld ',t ,,ra I t hf > i- .I lIilAunivtr;il%c 1_.a Judge kw. ,llh i s c
llt address h ihc General Coune vl' ceptilons h filed a iotion I,.
strike Rpondeint's ross -exceptiills, or. in the allterinative a 11otion It!
receive counsel for Ihe (icneral Coulnsel's ansst'rlng brltc' to Respllid-
ent's "cross- ct'Ceptililos " In i,o of our disp.olv i a -i this caseC. ', filnd t
ullnneces'ary to addrss the ,otllltlitlos raisedl b', lhc (eh et'rat r lll ,ii l',
2 In adopting he Admilistrative Law Judge's recommended dsposi-
tion of this case, we find it unnecessary to rely upon his genlr;l discus
sion of res judui uia vr upon the district court's opillol which hlie quoted
in the sion of his Decision entitled "Anilisnl anlit Conluding Fiiid-
ings
DECISION
STAI NMIENT 01- HIF CAS
ROBER'I COHN, Administrative Law Judge: Upon a
charge filed on May 16, 1979, by Independent Workers
Association (herein IWA), against Local No. 256, Inter-
national Molders' and Allied Workers' Union, AL-
CIO-CLC (herein Respondent). the General Counsel of
the National Labor Relations t3oard, through the Re-
gional Director for Region 10 of the Board, issued his
complaint and notice of hearing dated July 27, 1979. The
253 NLRB No. 133
complaint alleges, in essence, that Respondent violated
Section 8(b)(l)(A) of the National Labor Relations Act,
as amended (herein the Act), by failing to process a
grievance filed by an employee. Richard C. Hall, be-
cause the said Hall was not a member of Respondent and
for other arbitrary, invidious, and irrelevant reasons. Re-
spondent, by its duly filed answer. generally admitted the
jurisdictional allegations of the complaint but denied that
the aforesaid grievance was not processed because the
said Hiall was not a member of Respondent or that the
decision to drop the grievance was the result of any arbi-
trary. invidious, or irrele\ ant conduct on the part of Re-
spondent.
A hearing was held in Birmingham, Alabama. on Feb-
ruary 13 and 14, 1980, in which all parties participated.
Post-hearing briefs were filed by counsel for all parties,
which have been duly considered.
On JulI 1. 1980, 1 was in receipt of a "Motion To
Reopen the Record," filed by counsel for Respondent,
the purport of which was to receive in evidence a deci-
sion of the United States District Court for the Northern
)istrict of Alabama in which the said Hall was plaintiff
and Respondent was defendant.' The case , as one filed
by the said Hall under Section 301 of the Labor Manage-
ment Relations Act of 1947 (29 U.SC § 185) against Re-
spondet hercit alleging wrongful and unlavwful conduct
on the part of Respondent similar to that which is al-
leged herein by the General Counsel. After a full hearing
on the merits, the United States District Court entered a
judgment in favor of the defendant (Respondent herein)
findinlg, l essence. that the plaintiff failed in his proof
that the defendant did not fulfill its dul? of fair represen-
tation to those within the bargaining unit; uwhereupon
Respondenit moved that I should consider the decision of
the court to be res judicata, or collateral estoppel. as re-
spects the matter s.ub judce. 2
I am of the view that there exists considerable merit to
the contention of Respondent that the decision of the
court should operate as rs judicata in this matter in the
light of the fact that all factors considered to be prcreq-
uisites Ito the imposition of such doctrine appear to be
present, ad in the light of the policy considerations
enunciated by the United States Court of Appeals for the
Fifth Circuit in Painters District Council \No. 38. Brother-
hood of Painter.s, Decorators and Paperhungers of A.merica,
AFL--CIO v. Edge wood Contracting Company, 416 I.2d
1081 (1969). However, on the other hand, I am aware
that the Board guards rather zealously its power and pre-
rogative under Section 10(a) of the Act.:" Although the
Board. in General Motors Corporation,4 did not appear to
be inhospitable to the invocation of such doctrine in ap-
propriate cases, it would not seem appropriate for an ad-
( 1il Action No ?i i ')7s b LUticd Stted ti 'i t Pipe aid tl .1ldx
Compalnt. tall's employecr. was alo a ilmed defeldait;l
2 he time for appeal has expired
: Set (ha) of the Act reads fllmAss
ilic lit il i cIsiipis ercd, it as hc-r-nallc, r pr- lted, p c iii nlt
persill Ireill erigagig Il .all i l unlt. r labor t i', .lll t (litivl imi s.lloll XlS
ait'citig , oittill'-r ' I ll, s ivs- r saill not be .iffc:lr d hb, iiS .i lIt i
ilCiicaS o adjultttiiiii ,r pestio nll t hat has he-n or itaN h estab-
lishctl b agtieement. law. r otthrsisye
' I 5 NIRs I 1 72 172S (l 1i6)
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ministrative law judge to invoke the doctrine in such cir-
cumstances as are here presented without more affirma-
tive direction. Accordingly, I shall deny the motion
while admitting the decision of the court to be received
in evidence as Respondent's Exhibit 15. s
Upon the entire record in the case, and from my ob-
servation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. COMMERCE
The Employer involved herein, United States Pipe and
Foundry Company, is, and has been at all times material,
a Delaware corporation with an office and place of busi-
ness located in Birmingham, Alabama, where it is en-
gaged in the manufacture of cast iron pipe.
During an annual period, which period is representa-
tive of all times material herein, the said Company sold
and shipped finished products valued in excess of $50,000
from its Birmingham, Alabama, facility directly to cus-
tomers located outside the State of Alabama.
I find, as the answer admits, that the said Company is
now, and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. FILE I.ABOR ORGANIZATION INVOIVEI)
Respondent is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
1THE AI.EGEtD UNFIAIR I.ABOR PRACTICES
A. he Issue Involved
The sole issue involved is, as stated in the brief of
counsel for the General Counsel, whether Respondent's
failure to process employee Richard Hall's grievance to
arbitration violated Section 8(b)(l)(A) of the Act.
B. The Facts
As previously noted, the Employer has, at all times
material, operated a plant in Birmingham, Alabama,
where it is engaged in the manufacture of cast iron pipe.
Its production employees have, at all times material, been
represented for purposes of collective bargaining by Re-
spondent, and the last collective-bargaining agreement
between the Employer and Respondent became effective
January 24, 1978, to run for a 3-year period. Said collec-
tive-bargaining agreement contains a grievance proce-
dure culminating in final and binding arbitration before
an independent arbitrator selected by the parties (art.
VI).
For approximately 13-1/2 years prior to the events
giving rise to the issue in this case, Richard Hall was an
employee of the Company in the unit covered by the
5 It should be noted that, while I have denied the motion to dispose of
the case by the vehicle of res judicata, my impressions of the witnesses
are in accord with those of the district judge, and I reach a similar result.
6 Cf Bthhop and Mairo. Inc.. d/b/a Walker's, 159 NLRB 1159, 1161
(1966)
collective-bargaining agreement and a member of Re-
spondent. However, sometime in 1977, Hall ceased being
a member of Respondent, and commenced engaging in
some organizational activities on behalf of a rival union,
IWA. The record shows that in the fall of 1977 IWA
filed an election petition with the NLRB (Case 10-RC-
11257), which culminated in an election in which both
IWA and Respondent were on the ballot. Such election
was held on January 6, 1978, and resulted in Respond-
ent's receiving 234 votes and the IWA's receiving 182.
Thereafter, Respondent was certified as the exclusive
bargaining representative of the unit.
Approximately 1 year later, on or about January 15,
1979, Hall was terminated as a consequence of events
which occurred on December 30, 1978. On that date,
Hall worked an overtime shift from 12 noon until 8 p.m.
He was terminated by the Employer assertedly because
he left the plant premises at approximately 6 p.m. with-
out permission, returning at approximately 8 p.m. to
clock out. Thus, the Company's reason for the termina-
tion was twofold: (1) leaving the plant without permis-
sion, and (2) falsifying time records; i.e., claiming 2 hours
of work when he had not actually been present.
The same day, January 15, 1979, Hall contacted Re-
spondent's committeeman, James Wright, and advised
Wright that he wished to file a grievance against the
Company. Wright provided Hall with the grievance
forms and advised him how to fill them out and file
them. On January 16, Hall brought the completed papers
back to Wright and gave Wright the names of some of
his coworkers who Hall claimed could "verify that
[Hall] was on company property at that time." 7 After
Wright signed the grievance, Hall filed it with the Com-
pany on January 16, 1979.
Shortly thereafter, Respondent assigned committeemen
Wright and Wilfred Borden to investigate the case.
Borden testified that he asked Hall whether anyone was
with him at the time he clocked out that night, and Hall
responded yes, there were two employees-Jimmy Lee
(Peter) Burton and Wilson Bolden-with him when he
clocked out. However, Borden testified that, when he
(Borden) talked to Peter Burton concerning the night in
question, the latter told Borden that, although he and
Hall started out of the plant together, Hall turned around
and went back saying that he had to put up something.
Accordingly, Burton did not corroborate Hall with re-
spect to the point that the three employees clocked out
together. Borden further testified that he spoke with
Wilson Bolden, who told him the same thing.8
Committeeman Borden then testified that he spoke
with plant guard Jessie Manuel concerning the incident.
Manuel positively identified Hall as the person who left
the plant that evening, and was gone for some time
before returning to clock out. Manuel further advised
Borden that, when Hall saw the guards observing him
' Hall claimed that he never left the company property-that the
person whom the company guard saw leave the property in an auto-
limobile was. in fact. Hall's brother, who, Hall claimed, frequently used his
car while Hall uwas at work Itall's brother was ot an employee of
United States Pipe and Foundry Company
HBolden further advised Bhorden that he (Bolden) would rather not get
involved in an arbitration proceeding
970
ALLIED WORKERS LOCAL NO. 256
from the guardhouse, Hall attempted to "hide his face,"
but nevertheless Manuel, who had known Hall for about
4 or 5 years, recognized him.
Committeeman James Wright testified that he also in-
terviewed Burton and Bolden respecting their association
with Hall that evening, and they more or less corrobo-
rated the information that they had given committeeman
Borden. In addition, Wright spoke with a third employ-
ee-Maceo Cleggett-who also stated that he had started
to the clockhouse with Hall, but that Hall had returned
for something and the other three proceeded to the gate
to clock out.
Meanwhile, Respondent processed Hall's grievance
through the several steps of the grievance procedure;
however, the Company refused to retreat from its posi-
tion that the discipline meted out to Hall was correct.
On or about February 10, Respondent's grievance com-
mittee met to consider whether the Hall grievance, and
another grievance filed by employee Johnny Morton,
should be taken to arbitrations At the meeting, both the
Hall and Morton grievances were considered, and, ac-
cording to the minutes thereof, a lengthy discussion was
had. However, at the close of such discussion, a motion
was made and carried that the Morton grievance be re-
ferred to the district representative for his advice on ar-
bitration while a motion by the chairman of the commit-
tee (Earl Hyde) was made and carried that the Hall
grievance be dropped for lack of merit.
C. Analysis and Concluding Findings
The principles of law applicable to the issue in the in-
stant case were recently set forth by an Administrative
Law Judge (affirmed by the Board), as follows:' °
The principles of law that must guide decision on
the issue in this case are well settled. A union occu-
pying an exclusive bargaining status must serve the
interests of all bargaining unit employees fairly and
in good faith, and without hostile discrimination
against any of them on the basis of arbitrary, irrele-
vant, or invidious distinctions. See, e.g., Vaca v.
Sipes, 386 U.S. 171; Local Union No. 12, United
Rubber, Cork, Linoleum & Plastic Workers [Goodyear
Tire & Rubber Co.] v. N.L.R.B., 368 F.2d 12 (5th
Cir. 1966), cert. denied 389 U.S. 837; Miranda Fuel
Co., 140 NLRB 181. The Supreme Court has recog-
nized, however, that in the interest of effectively
administering a contract's grievance-arbitration ma-
chinery a union must be allowed a considerable
range of discretion in screening out, settling, or
abandoning, short of arbitration, those grievances
9 The record shows that Morton, who was a member of Respondent,
was terminated by the Company on December 29, 1978. for leaving com-
pany property assertedly for 2-1/2 hours Morton, too. filed a grievance
which was investigated by agents of Respondent However, in that griev-
ance, Morton admitted leaving the plant for a short while to go to a
nearby snack bar to obtain food, but claimed he was only aay lir ap-
proximately one-half hour. He further acknowledged that some tosrm of
penalty might be appropriate. but that discharge was "too stvere " (i C
Exh 5)
io Local 575. Packinghouse Divilon. .mirnagamald Meat (Cuiri ad
Butcher Workmen, (UPW.4),. 4FL.-CIO (Omaha Packing Companvi 200
NLRB 576, 579 (1973)
which the union in good faith believes do not justi-
fy that costly and time-consuming final step. Vaca
v. Sipes, supra at 191-192. Accordingly, the Su-
preme Court has held that an individual grievant
has no absolute right to have his grievance taken to
arbitration. No inference of unfair representation
may, therefore, be drawn simply from a bargaining
agent's failure or refusal to press a grievant's case
through the ultimate stage of a contract's grievance-
arbitration procedures, or, for that matter, through
any intermediate stage. And this, it has been held, is
so even though it appears that the union may have
acted negligently or exercised poor judgment in its
handling of a grievance. Bazarte v. United Transpor-
tation Union, 429 F.2d 868, 872 (3d Cir.). "A breach
of the statutory duty of unfair representation," the
Supreme Court has made clear, "occurs only when
a union's conduct toward a member of the collec-
tive-bargaining unit is arbitrary, discriminatory, or
in bad faith." Vaca v. Sipes. supra at 190.
Applying the foregoing principles to the facts in the
case at bar, I conclude that the General Counsel has
failed to sustain his burden of proving by substantial evi-
dence that Respondent violated its obligation to Hall
under Section 8(b)(l)(A) of the Act.
Thus, from the outset, the evidence is clear that the
agents of Respondent, upon learning of Hall's discharge
and his wish to file a grievance, were sympathetic and
helpful in providing Hall with information and forms
necessary to pursue his desire. There was no reluctance
or delay on the part of Respondent's agents in perform-
ing their duties in this regard, and they solicited Hall's
evidence with respect to those witnesses who he claimed
would be helpful in backing his claim. Moreover, there is
certainly no evidence of personal animosity on behalf of
any of Respondent's agents against Hall as a consequence
of any activities he may have engaged in on behalf of
IWA. "
The evidence further supports Respondent's conten-
tion that a reasonable investigation was made of the Hall
grievance. Respondent's agents interviewed all of the
witnesses whom Hall presented in support of his case,
and there is no showing that they failed to consider any
evidence contended by Hall to support his case. Unfortu-
nately, from Hall's standpoint, his witnesses did not fully
support his story that they all clocked out together
Moreover, and perhaps more importantly from the stand-
point of assessing the merits of Hall's case and its capac-
ity to withstand the tests of the arbitration process, Hall
never presented during the investigation of his grievance
the key witness who would show that he (Hall) never
left the plant during the evening of December 30. This,
of course, was his brother. Certainly, Respondent was
entitled to place great weight upon that point in assess-
' IThere is indeed a lack of sublanial evidence that Respondent's
agents were avvarc that Hall to(ok an active part in the election canpalgn
which had (ccurrcd aihu it car prior to the cents in this case Howc-
er. the evidenlc doe slhow that tall 'was no a mnember of Respontdet al
the tinte f the discharge, and it mar be rcasonlal Inferred that the
agents (f Respondenl were aware of that fact, and were dlhiles 1ot
sympathetic with Hall's status in that regard
971
DECISIONS OF NATIONAL LABOR REt.ATIONS BOARD
ing the merits of Hall's case. Furthermore, with respect
to the assessment of Hall's case, and the possibility of
being successful in an arbitration proceeding, the record
shows that Respondent's agents placed substantial cre-
dence in the testimony of the plant guard, Jessie Manuel,
who was, essentially, a disinterested witness. The latter
testified in the instant proceeding and was, indeed, an ar-
ticulate, candid, and impressive witness.
Of course, the General Counsel and the Charging
Party, in support of their contention, rely heavily upon
the contrasting conduct of Respondent in approving the
Morton case for arbitration while rejecting the Hall case.
However, there is a significant difference which Re-
spondent was entitled to consider in making such an as-
sessment. This was th2 fact that Morton was absent from
the plant only a short period of time, and had left solely
for the purpose of obtaining food. T2 More importantly,
perhaps, was the fact that Morton acknowledged his
error and contended only that the penalty was too
severe. Thus, there was no issue of credibility which Re-
spondent was certainly entitled to consider in assessing
the merits of the cases for arbitration. ' '
Finally, there is in the instant record no showing that
Respondent regularly and consistently failed to represent
and pursue grievances of nonmembers. To the contrary,
as the district court noted in its opinion:
1 e. ,l I nrF' t-cltd tc , .imo!ny Il Ihe ifc rd Ihitl it A, I colInll]ll
practlice of rnployccs wilo acre working Otrlllltg (Cr as . , As IlctseZ lr)
to leave a]Ll ge;lsUICe Food tld Ltlre l witlh r W ithOIt the CIraFlssioll f
the supervisor ecause Ihe supcrvi.or "as , C gladl toi gel rnlhl,,l, to
wirk."
" (11 this pit I, hc Uiited SClte Di)sti ci (t1 lul l tih SiL - 1i) cais
OhIrved aIs fllows:
The nltre factl hat the union r miighl, or saOllit. U111I11 11ITll'lal er
mighl. conclde that tey might ill lit arhitratimll does 1 1 lcall
Ihat IhleC all-e iohliged nleces*,arly o pirsuIe that, if lhci hbli'ixc Ill
go/Nd cinlsclli c Ihat the slor
x
hbCillg Iol,1 I l fille
Ihis Court could hardly rll herwie t rw ill(l pUlt oil 1 1 a iIiOl Ih
obligaltiol , a ia rlalter o)If sIori li tulaC (lt, . of 1CICLIIIlg If nlltter
which ill good CoINClICllCCe t believs not to be holeslC alld trlil tull
The evidence also indicates that there had been
non-members, or persons indeed who were active in
supporting another union, whose grievances have
been pursued, and pursued to arbitration, when the
union believed that the matter was meritorious.' 4
On the basis of all of the foregoing, I find and con-
clude that the evidence does not sustain the contention
of counsel for the General Counsel and of the Charging
Party that Respondent acted arbitrarily, discriminatorily,
or in bad faith with respect to the pursuing of the Hall
grievance to arbitration. Accordingly, I conclude and
find that the evidence does not sustain a finding of a vio-
lation of Section 8(b)(1)(A) of the Act.' 15
CONCI USIONS OF LAW
1. United States Pipe and Foundry Company is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not, as alleged in the complaint, en-
gaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act.
Based upon the foregoing findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby make the following
recornmcnded:
()RDER 16
The complaint should be, and hereby is, dismissed.
4 S Ip et 14
ifl E ttrt Cittlti r4,rA ,r l nCCC (/ndJcpC'ndc C (JI mh/Clnup/ol/ P-,'r &
.gi'lht CompC y). J 2(1 N R 124, l 1 (1974)
; In the ccnl aC ll o exceptiris re failed a, provic eli b Sec 102
4
, Olf
ihe Rules; arnd Regulationls of the Nat;lli al l.ahbo Rtclii ons IBoard , lle
f[lidi gs. CoICo usiCs, ild lcOrllCllCl C d ()rder flcrtr l sihall, is prolili
ill Sc 1)2 4 Of the Ruls ;alid RcgLlalliI. he ad t1 i c h the IlalCl allid
heomeC its fnlidilgs. <-CC I llCMiflC0 , illf ()rCier, and all ohlccli ons hcrto
,hall h deemaiedi CaIsX fo r C all puIrpos,
972