Glass Bottle Blowers

National Labor Relations Board - Board Decisions

Jan 29, 1979

240 N.L.R.B. 324 (N.L.R.B. 1979)

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glass Bottle Blowers Association of the United States
and Canada, AFL-CIO, Local No. 106 (Owens-Illi-
nois, Inc.) and Russell Spears. Case 9-CB-3358
January 29, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On June 26, 1978, Administrative Law Judge Karl
H. Buschmann issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
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 that at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith and to adopt his rec-
ommended Order as modified herein.
Although we agree with the Administrative Law
Judge that Respondent violated Section 8(b)(l)(A) of
the Act by breaching its duty of fair representation,
we disagree with certain of his comments about the
basis for so finding. We also disagree with the Ad-
ministrative Law Judge's conclusion that the Re-
spondent violated Section 8(b)(2) of the Act.
Our principal difficulty with the Administrative
Law Judge's analysis is his suggestion that resolution
of the question of whether or not a union has
breached the duty of fair representation by declining
to process a grievance to arbitration depends on an
ex postfacto evaluation of the merits of the grievance.
Of course, it is settled law that a union need not
expend time and resources pursuing a grievance that
is clearly frivolous. Vaca v. Sipes, 386 U.S. 171, 191
(1967). And the Board, in recognition of this fact, at
times has specifically noted in passing on an alleged
violation of the duty of fair representation that the
particular grievance involved in a case was "not
clearly frivolous." 2 Examination of a grievance for
'Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 See, e.g., The Buffalo Nevspaper Guild, laocal 26, American Newspaper
240 NLRB No. 29
the limited purpose of determining whether or not it
is "clearly frivolous" is not, however, the first step in
a far-ranging inquiry into the merit or importance of
the grievance. Nor should it be. Where, as here, a
union undertakes to process a grievance but decides
to abandon the grievance short of arbitration, the
finding of a violation turns not on the merit of the
grievance but rather on whether the union's disposi-
tion of the grievance was perfunctory or motivated
by ill will or other invidious considerations. Thus, the
fact that the grievance in the instant case may have
been characterized correctly by the Administrative
Law Judge as "complicated" and "of serious implica-
tions" is not, given the circumstances here, relevant
to, let alone determinative of, whether Respondent
breached its duty of fair representation by declining
to take the grievance to arbitration.
Despite our disagreement with the Administrative
Law Judge on this point, we agree with his findings
that Respondent violated the Act by processing the
Charging Party's grievance in a perfunctory manner
and by refusing, for invidious reasons, to take the
grievance beyond the second stage of the grievance
procedure.' First, as detailed by the Administrative
Law Judge, there is considerable background evi-
dence of hostility on the part of Respondent's leader-
ship toward the skilled trades in general and the
Charging Party and his brother in particular. Second.
the resistance encountered by the Charging Party
when he attempted to file the grievance, coupled with
contemporaneous expressions of hostility by union
officials, indicates that fair consideration of the
grievance was unlikely. Third, Respondent investi-
gated the grievance in a perfunctory manner, as evi-
denced by its failure to confront the Charging Party
or his brother with the basis for its conclusion that
they had waived their operator seniority.4 Fourth, it
Guild, AFtl. ('10 (I.C (Buffalo (ourier-rpress, Inc). 220 NLRB 79 (1975).
3The Charging Party's grievance concerned whether or not he and his
brother retained their operator seniorrity (which governs the order in which
qualified operators may operate machines in a given department) when they
bid back into their old department in May 1976 after having been transfer-
red to another department in 1974 because of poor business conditions.
After a number of employees who had returned to the department in 1975
complained that they did not think it would be fair if the Charging Party
and his brother retained their operator seniority, the Employer determined
that they had waived their department and operator seniority by refusing an
opportunity to return to their old department in unskilled jobs in 1975.
Respondent contends it declined to process the (Charging Party's grievance
beyond the second stage based on its determination that the Employer's
conclusion that there had been a waiver was correct. Both the Charging
Party and his brother have consistently denied they were offered the chance
to return to their old department prior to May 1976.
'See Phyllis Whitehead d/,h a P & 1. Cedar Products. 224 NI.RB 244
(1976): cf. Service Emprloiees International Union, Local No 579 ((onvacare
of Decatur, d/Vha Beverly Manor Convalecent ('enter), 229 NLRB 692
(1977). At most, the record shows that Respondent's ice president. Bill
Middleton, informally raised the issue with the Charging Party. at which
time the Charging Party vehemently denied there had been such a waiver.
We reject Respondent's suggestion that the (Charging Party's failure to
seek the return of his department seniority (in addition to his operator
BOTLE BLOWERS LOCAL NO. 106 325
is undisputed that Respondent did not present the
Charging Party's position at meetings with the Em-
ployer once it undertook to process the grievance hut
merely indicated its agreement with the Employer's
position.5 Finally, the circumstances under which
Respondent decided to abandon the grievance belie
Respondent's contention that its decision was based
on objective consideration of the grievance on its
merits. Thus, although Local union officials referred
the grievance to the International for advice and pre-
sented it to a closed meeting of the Iocal's executive
board, they presented the grievance in such a light as
to suggest that the only issue was whether waiver of
departmental seniority also waived operator senior-
ity. There is no evidence that the Charging Party's
denial of any waiver of either departmental or opera-
tor seniority was brought to the attention of the In-
ternational or the executive board.6 Accordingly, we
are unwilling to accept Respondent's attempt to
clothe its decision to abandon the grievance with the
appearance of fair consideration.7 and we conclude
that Respondent deprived the Charging Party and
his brother of their Section 7 rights to fair representa-
tion in violation of Section 8(b)(1)(A) of the Act.
As indicated previously, we do not accept the Ad-
ministrative Law Judge's finding that Respondent
also violated Section 8(b)(2) of the Act. In implicat-
ing Respondent in the Employer's initial decision to
seniority) in his grievance constituted an implicit admission that he had
waived it Respondent can hardls argue that the grievance should be con-
strued against the Charging Parts when the record shows the latter was
forced to draft the grievance himself because Respondent's officers had
refused to do s. Further. although the Union might reasonably haze con-
cluded that the ('harging Party and his brother had waived their departmnent
and operator seniority bh failing to file grievances n 1975 when the, kines
that less senior employees had been recalled before them. the record does
not sustain a finding that this theory formed the basis of Respondent's
decision not t process the grievance beyond the second stage. and Respon-
dent's advancement of this theory at this stage is no more than an after-the-
fact rationalization. ('ompare General Tru-k Drivers. S arehou.sein.
Helpers and Auiom,tirve Emploveevs. Local .15, International Brotherh.dv of!
7earnsters, (hauffeurs, Warehsusemenn and Heiperr of A nerca Rhde.s & Ja-
mieson. Lid), 217 NLRB 616, 619 (1975. enfd 545 F 2d 1 173 9th ('irt.
1976). with United Steel orAkers of .Amria .4FI. ('10 (Miami Copper (om
pan). I(90 NiRB 43 (1971).
See PP.(; Industries Incorporated. 229 NILRB 713 1977): cf. Beerl
Manor Convale.scent (enter. supra: E .. Mustee & Sons. Inc. 21 NRB
203 1974). Truck Drivers. Oil Drivers and Filling Station and Platform I$ ork
err ris'al Nos 7()5, International Brotherhood of leantrter.s. (hauffeurs. 'are
housemen and Helpers of Amnerica (A.sxvociated Transport, Inc). 209 NLRB 292
(1974), petition for review denied 532 F2d 1169 (7th Cir 1976).
Union Steward Slade told the executive hoard he was present at a meet-
ing in October 1975 when, he alleged, the (Charging Party and his brother
were offered and refused opportunities to return to their old department
Evidence was presented at the hearing. however. which casts doubt on
whether the meeting Slade claims to have witnessed eer took place
Moreover Respondent's contention that the fact that several persons on
the executive board were skilled workers belies suggestions that the griev-
ance was dropped because of hostihts to the skilled trades is unpersuasive.
inasmuch as the record shows that some of these indisiduals soriginall3, had
less operator seniority than the grievants and apparently ere among those
employees who had returned to the department in 1975. Thus. they cannot
be said to have been unbiased as to the ulcome of the grievance (