Groves-Granite

National Labor Relations Board - Board Decisions

Sep 27, 1977

232 N.L.R.B. 381 (N.L.R.B. 1977)

GROVES-GRANITE
Groves-Granite, a Joint Venture and Leroy C.
Baublitz
Carpenters Local No. 2205, United Brotherhood
Carpenters & Joiners of America and Leroy
Baublitz. Cases 19-CA-8454 and 19-CB-2640
of
C.
September 27, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 19, 1977, the National Labor Relations
Board issued its Decision and Order' in this
proceeding in which it found that the Respondent
Union had violated Section 8(b)(IXA) of the Act by
failing to adequately represent Leroy C. Baublitz, the
Charging Party, after his discharge from Chaussee
Corporation. In setting forth certain remedial provi-
sions, the Board additionally adopted the Adminis-
trative Law Judge's recommendation that it retain
jurisdiction over this matter in order to reconsider
the remedy and provide further appropriate affirma-
tive provisions should those specified prove ineffec-
tive.2
On July 18, 1977, the General Counsel filed his
motion to reopen the proceeding for the issuance of a
supplemental decision and order. The General
Counsel alleges that the Respondent Union has
continued in its failure to represent Baublitz and that
the Respondent Union should therefore be ordered
to make Baublitz whole for any loss of earnings he
has suffered as a result of his discharge from
Chaussee Corporation. 3 Respondent Union filed an
answer to the General Counsel's motion in which it
requests that the Board issue a supplemental decision
and order discharging it from any further obligation
to pursue Baublitz' grievance against Chaussee
Corporation, or, in the alternative, to advise it as to
the proper course of action to take in an effort to
comply with the Board's original order.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In its Decision and Order, the Board ordered the
Respondent Union to "promptly request of Chaussee
Corporation that it submit to grievance proceedings
concerning the propriety of Chaussee's discharge of
Leroy C. Baublitz." The General Counsel's motion
i 229 NLRB 56 (1977).
2 In this regard, the Board determined that it would be appropriate to
retain jurisdiction in order to entertain a motion to reopen the proceeding,
after exhaustion of the grievance process, to resolve any questions of
economic detriment occurring to Baublitz by reason of the Respondent
Union's failure to represent him.
232 NLRB No. 58
and supporting documents show that the Respondent
Union has requested Chaussee Corporation to
consider a grievance concerning Baublitz' discharge
and to take such grievance to arbitration. However,
Chaussee Corporation has refused to entertain such
requests, claiming that the discharge is not cogniza-
ble under the grievance and arbitration process in the
applicable collective-bargaining contract. Further-
more, additional documents reveal that Respondent
Union agrees with the position taken by Chaussee
Corporation. Thus, no grievance has been processed
or is currently being considered concerning the
propriety of Baublitz' discharge under the applicable
bargaining agreement.
In its answer to the General Counsel's motion,
Respondent Union contends that it pursued Bau-
blitz's discharge with Chaussee Corporation, but that
its overtures to Chaussee Corporation have been
rejected. Thus, Respondent Union argues that it has
fulfilled the obligation imposed on it by the Board,
and that it should be released from any further
obligation, both legal and monetary, to pursue this
matter further, as there has been no determination
that Baublitz' discharge was, in fact, unlawful.
As the Board indicated in its initial Decision, there
appeared the possibility that the Order then issued
would not make Baublitz whole for Respondent
Union's unlawful refusal to represent him concerning
his discharge from Chaussee Corporation. It was for
this reason that the Board determined to retain
jurisdiction over this matter. The Board's Order did
not merely involve making a request of Chaussee
Corporation to submit to grievance proceedings and,
in the event it refused such proceedings, for the
Union to cease its efforts on behalf of Baublitz.
Rather, it contemplated that the entire grievance
procedure outlined in the applicable bargaining
agreement be followed to its conclusion, with the
Respondent Union under the affirmative duty to
take whatever steps were necessary to effectuate the
Board's Order. Insofar as the papers before us show,
the Respondent Union has taken no effective steps to
fulfill its obligation of fair representation so as to
remedy its unlawful conduct with respect to Bau-
blitz; such as, for example, bringing a proceeding
under Section 301 of the Act in order to obtain a
determination of the contractual propriety of Bau-
blitz' discharge. Failing in this, Respondent Union
cannot now be heard to claim that there has been no
determination that the discharge of Baublitz was
unlawful.
3 In the alternative, the General Counsel requests that Respondent
Union be ordered to proceed to take Baublitz' grievance to arbitration In
view of our disposition of the proceeding herein, we find it unnecessary to
rule upon the alternative motion.
381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, contrary to the Respondent Union's
agreement with Chaussee Corporation that the
discharge is not cognizable under the contract, the
Administrative Law Judge noted in his Decision that
no contention had been made that the discharge was
not a suitable matter for the grievance and arbitra-
tion process of the contract. As the Board found in
its original Decision, it was the Respondent Union's
unlawful denial of fair representation which created
the indeterminate situation concerning Baublitz'
status.
In these circumstances, both the equities and the
proper and effective realization of the statutory
policy require that the Respondent Union bear the
burden of the ambiguities which it has created by its
illegal acts. 4 Consequently, we shall order that it
make Baublitz whole for any loss of earnings he may
have suffered as a result of his dicharge from
Chaussee Corporation on or about October 30, 1975,
less net interim earnings during such period, in
accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with
interest to be computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB No. 117
(1977),5 from the time he requested the Union to
present a grievance on his behalf concerning that
discharge until the date on which Baublitz obtained
employment at Groves-Granite.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Union, Carpenters Local No. 2205, United Brother-
hood of Carpenters & Joiners of America, Wenat-
chee, Washington, its officers, agents, and represen-
tatives, shall:
I. Cease and desist from:
(a) Failing to represent Leroy C. Baublitz or any
other employee adequately in grievance matters, by
disparaging the cause to management officials; by
abandoning interest in the grievance based upon
considerations that are arbitrary, in bad faith, or
discriminatory; or by giving misleading information
to the aggrieved employee concerning the Union's
position in the matter.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Make Leroy C. Baublitz whole for any loss of
earnings he may have suffered as a result of his
discharge from Chaussee Corporation on or about
October 30, 1975, less net interim earnings, with
interest on the amount of such loss, in the manner set
forth in this Supplemental Decision, from the time
Baublitz requested the Union to present a grievance
on his behalf concerning that discharge until the time
he obtained employment at Groves-Granite.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its offices, meeting halls, and hiring halls
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 19, after being duly
signed by an authorized representative of Carpenters
Local No. 2205, United Brotherhood of Carpenters
& Joiners of America, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Furnish the Regional Director for Region 19
signed copies of said notice for posting by Chaussee
Corporation, if willing, in places where notices to
employees are customarily posted.
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps Respondent Union has taken to comply
herewith.
4 See Local 485, International Union of Electrical, Radio & Machine
Workers, AFL-CIO (Automotive Plating Corp.), 170 N LRB 1234 (1968), and
183 NLRB 1286(1970).
5 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail to represent Leroy C.
Baublitz or any other employee adequately in
grievance matters, by disparaging the cause to
management officials; by abandoning interest in
the grievance based upon considerations that are
arbitrary, in bad faith, or discriminatory; or by
giving misleading information to the aggrieved
382
GROVES-GRANITE
employee concerning the Union's position in the
matter.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
WE WILL make Leroy C. Baublitz whole for any
loss of earnings he may have suffered as a result
of his discharge from Chaussee Corporation on or
about October 30, 1975, less net interim earnings,
with interest on the amount of such loss, from the
time Baublitz requested us to present a grievance
on his behalf concerning that discharge until the
time he obtained substantially equivalent employ-
ment.
CARPENTERS LOCAL No.
2205. UNITED
BROTHERHOOD OF
CARPENTERS & JOINERS
OF AMERICA
383