International Brotherhood of Boilermakers, Local 132

National Labor Relations Board - Board Decisions

Sep 4, 1975

220 N.L.R.B. 119 (N.L.R.B. 1975)

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , LOCAL 132
International Brotherhood of Boilermakers , Iron Ship-
builders, Blacksmiths, Forgers & Helpers, AFL-
CIO, Local 132 (Kelso Marine, Inc.) and Paul Ran-
dle Morgan . Case 23-CB-1608
September 4, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On May 9, 1975, Administrative Law Judge Lowell
Goerlich issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, General Counsel filed exceptions
and a supporting brief, and Respondent filed a reply
brief.
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, findings,' 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 Respondent , International Brother-
hood of Boilermakers , Iron Shipbuilders, Black-
smiths , Forgers & Helpers , AFL-CIO, Local 132,
Galveston , Texas , its officers, agents , and representa-
tives , shall take the action set forth in the said recom-
mended Order , except that the attached notice is sub-
stituted for that of the Administrative Law Judge.
' The Respondent and General Counsel have excepted to certain credibil-
ity findings made by the Administrative Law Judge It is the Board 's estab-
lished policy not to overrule 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 (C.A. 3, 1951) We
have carefully examined the record and find no basis for reversing his find-
ings.
We have substituted the attached notice for the notice recommended by
the Administrative Law Judge in order to conform the notice to his Conclu-
sions of Law and recommended Order, adopted herein.
APPENDIX
119
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties were permitted to
introduce evidence it has been decided that one of
our representatives informed an employee that the
Union would not arbitrate his discharge grievance
because he was not a union member and that be-
cause of this misconduct we violated the National
Labor Relations Act, as amended.
WE WILL NOT inform employees that we will
not arbitrate employees' grievances because they
are not members of our Union.
INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIPBUILDERS,
BLACKSMITHS , FORGERS & HELPERS,
AFL-CIO, LOCAL 132
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The
charge filed by Paul Randle Morgan on December 20,
1974, was served on the International Brotherhood of Boil-
ermakers, Iron Shipbuilders, Blacksmiths, Forgers & Help-
ers, AFL-CIO, Local 132, the Respondent herein, by regis-
tered United States mail on December 23, 1974. A
complaint was issued on January 17, 1975, in which it was
charged that the Respondent had refused to arbitrate the
discharge of Paul Randle Morgan on December 14, 1974,
under the provisions of a contract between the Respondent
and Kelso Marine, Inc., herein called the Employer, be-
cause Morgan was not a member of the Respondent
Union, in violation of Section 8(b)(1)(A) of the National
Labor Relations Act, as amended, herein referred to as the
Act.
The Respondent filed a timely answer denying that it
had engaged in any of the unfair labor practices alleged.
The case came on for trial at Galveston, Texas, on Feb-
ruary 20 and March 19, 1975. Each party was afforded a
full opportunity to be heard, to call, examine, and cross-
examine witnesses, to argue orally on the record, to submit
proposed findings of fact and conclusions, and to file
briefs. All briefs have been carefully considered.
220 NLRB No. 22
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT, I CONCLUSIONS,
AND REASONS THEREFOR
1. THE BUSINESS OF THE EMPLOYER
Kelso Marine , Inc., is and has been at all times material
herein a corporation duly organized under and existing by
virtue of the laws of the State of Texas . At all times maten-
al herein , the Employer has maintained its principal office
and place of business in Galveston, Texas, where it manu-
factures and sells prestressed concrete products.
During the past 12 months, a representative period, the
Employer sold products valued in excess of $50,000 to
companies each of which during the same period received
in excess of $50,000 for the performance outside the State
of Texas of services for customers who also are located
outside the State of Texas.
The Employer is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Respondent is now , and has been at all times material
herein , a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
First: The Respondent in its answer denied that on or
about December 17, 1974, and at all times thereafter, Re-
spondent has refused to arbitrate a grievance arising out of
the discharge of Paul Randle Morgan by Kelso Marine,
Inc., on December 11, 1974, under the provisions of the
collective-bargaining agreement between the Employer
and the Respondent , because Morgan was not a member
of the Union. The Respondent does not contest the fact
that it has not processed Morgan's grievance through arbi-
tration but, by affirmative defense , it asserts that this fail-
ure is attributable to its learned conviction that the griev-
ance could not be won in arbitration rather than to
Morgan's nonmembership in the Union. Thus the issues
are joined.2
The matter of credibility is a threshold consideration.
Morgan claims that Union Steward Nathan Gray Adams
told him that the Respondent would not arbitrate his dis-
charge grievance because he was not a union member.
1 The facts found herein are based on the record as a whole and the
observation of the witnesses . The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits , with due
regard for the logic of probablility, the demeanor of the witnesses , and the
teachings of N L R B. v. Walton Manufacturing Company & Loganville Pants
Company, 369 U.S. 404, 408 (1962). As to those witnesses testifying in con-
tradiction to the findings herein, their testimony has been discredited , either
as having been in conflict with the testimony of credible witnesses or be-
cause it was in and of itself incredible and unworthy of belief All testimony
has been reviewed and weighed in the light of the entire record No testimo-
ny has been pretermitted.
In this respect Morgan testified that on several occasions
after his discharge, during the period in which Adams was
handling his grievance, Adams informed him of this cir-
cumstance in substantially these words on at least three
occasions:
Well, if it gets down to arbitration . . . they won't take
it to arbitration. . . . They're either going to take a
man's case and fight it and maybe win it; and take a
man that ain't been in the union for a certain amount
of years and go down there and lose it . . . . They just
won't fight your case.
... it would not go to arbitration because you're not
a member of the union... .
... they wouldn't take it to arbitration because
[you're] not a member of the union, and fight it and
win [your] case... .
They will not take your case to arbitration, and go
down there and fight for a man that ain't in the union
and win his case, and fight for somebody that is in the
union and maybe lose it.
... it wouldn't go to arbitration . . . [b]ecause [you
weren't] a member of the union.
If you were in the union, we could send you down to
the union hall and send you out on a job, but you are
not in the union, and that's what's going to make it so
rough.
They just won't go down there and fight for a man
that's not in the union.
... if [you were] in the union there wouldn't be no
problem... .
If you were a member of the union, then, we could go
right on with this thing.
Martha F. Morgan, Morgan's wife, was present at Ad-
ams' home on December 11, 1974, when Morgan's dis-
charge grievance was discussed between Morgan and Ad-
ams. Adams' wife was also present. Mrs. Morgan
overheard Adams say that "it would not go to arbitration
because he [Morgan] wasn't a member of the Union. That
if he was . . . a member of the Union, that he [Adams]
could go ahead with it. But he was pretty sure he [Adams]
could get him off with a three-day layoff and have him
back to work by Tuesday morning." Adams added that
when Morgan "got him back on, to join the Union. Make
2 Counsel for the Respondent stated for the Record.
... we believe that the nature of [Morgan 's] conduct during that peri-
od of time, beginning in September , and ending . . with his discharge
is so outrageous that no arbitrator under any standard of industrial
justice would contemplate even the possibility of putting him back to
work.
For these reasons, we decline to arbitrate the case and continue to
decline to arbitrate the case. . .
We do take the position that we will not process this case to arbitration
because it is devoid of merit.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , LOCAL 132 121
sure he joined the Union." 3 The Respondent did not call
Adams' wife for testimony. It justified this omission:
We feel that if we're going to lose the case because
we don't bring our wives in to back us up, we'll just
have to take that chance.
Mrs. Adams has been burdened enough by this
Charging Party coming to their home repeatedly in his
usual manner, and we will not burden her further.
The absence of Mrs. Adams as a witness does not contri-
bute to a favorable finding of credibility on Adams' part.
Mrs. Morgan also testified that after Morgan returned
from his last grievance discussion with Adams he remarked
that "it wouldn't go to arbitration because he wasn't a
member of the Union." Thereafter Morgan immediately
went to the Board's Regional Office where a charge was
filed on December 20, 1974.
The subject of filing a charge had come up several times
in the discussions between Adams and Morgan which cov-
ered a period from December 11 to December 19, 1974.
Morgan referred to this procedure as "Step II." At the final
meeting between Adams and Morgan, according to Ad-
ams, he was given the "impression" that Morgan was
"going to file a charge against the Company";4 that he
thought that "the company was unjust in discharging
him"; and that "they're going to pay me, goddamn it, I'm
going to go down and file charges on this." 5 According to
Morgan, he asked Adams whom he should file charges
against and Adams answered that "it would be against the
company."
After Morgan appeared at the Board's Regional Office
and described what occurred, a charge was filed, to wit:
"Since on or about December 19, 1974, the above-named
labor organization, by its officers and agents, restrained
and coerced Paul Randle Morgan by the failure of said
labor organization to fairly and impartially represent him
in his dispute with Kelso Marine, Inc." Morgan had had
no intention of filing a charge against the Union when he
entered the Board's Office.
On the basis of these facts (demeanor also considered), it
is concluded that Adams did inform Morgan that the Re-
spondent would not process his discharge grievance in ar-
bitration because he was not a member of the Union. Fac-
tors which in addition to demeanor are persuasive in this
respect are: (1) Morgan described to the Board's agents (as
he later did in his testimony) details of the incident before
he had any idea that he had a claim against the Union,
thus obviating any inference that he was lying to make a
claim against the Union; (2) it is unlikely that Morgan
would have gone to the Board at all had arbitration been in
the offing; (3) Mrs. Morgan was a credible corroborative
witness; and (4) Mrs. Adams did not show.
While Adams was a good steward and worked diligently
3 Adams testified , "His wife brought up the fact that if Red gets you back
on, you better goddamn well join that Union "
4 Adams testified that Morgan "was wanting to go to the NLRB before
[he had even heard the grievance in Step I "
Adams testified , "He had the impression that the Company had really
given him a real raw deal on this thing and that he hadn't had enough slips
in his file to cover for the disciplinary action that was taken on him And in
that way he was going to go down and file charges on the Company"
in Morgan's cause, nevertheless, as between Morgan and
the Respondent, he chose to cover up.
Adams' statement to Morgan that the Union would not
process his grievance through arbitration because he was
not a member of the Union restrained and coerced em-
ployees in the exercise of the rights guaranteed by Section
7 of the Act, and the Respondent thereby violated Section
8(b)(1)(A) of the Act. Cf. Port Drum Company, 170 NLRB
555 (1968).
Second: It is patent as found above that Adams' remark
to Morgan constituted an unfair labor practice; however,
the difficult question remains as to whether the
Respondent's refusal to arbitrate Morgan's grievance was
actually based in whole or in part on his nonunion status.
The Respondent argues that the refusal to arbitrate was
based solely on a decision that the grievance lacked merit
and thus could not be won in arbitration. This was the
point of view expressed by Union Business Manager and
Financial Secretary Kohlus Karl Knapp who, according to
his testimony, was solely responsible for the decision not to
arbitrate.
Knapp first became aware of Morgan's problem on De-
cember 12, 1974. His notes reveal: "V. V. Gonzalez, the
foreman, and Morgan got into a beef on Wednesday, De-
cember the 11th, 1974. And Morgan told Gonzalez that he
didn't think that he wanted to work any longer for .. .
blank, blank, blank 6 like Gonzalez,? and they both went to
the office, and the Company terminated Morgan." 8 Ad-
ams reported that "Morgan had given Gonzalez a good
cursing and had plainly stated that he did not want to work
for an individual of the description that he had used. And
that, as a matter of fact, Morgan's temper was up pretty
good and they had to take him out of the office because he
was using profanity in the office and had threatened to
whip everyone that was in the office." Adams also reported
that Morgan had repeated the statement in the Company's
office and said that he "had quit and did not wish to con-
tinue working for the Company."
On Monday, December 16, 1974, Knapp conferred with
Personnel Director Linn Fink by telephone. Knapp asked
Fink to give Morgan another opportunity and explained
that anyone can get "hot-headed, that it was just one of the
typical characteristics of an individual who works in this
industry, and that they would be losing a good employee,
that they needed him"; that Fink had `just come from
recruiting, and it didn't make sense to go a hundred or two
6 Knapp said he used blanks in deference to his female secretary who
sometimes reviewed his notes.
7 Morgan was a welder On December 11, 1974, Morgan and some other
employees were working in the "back end" of a barge. Gonzalez came to
each employee When he approached Morgan, Morgan had just finished a
cigarette. Gonzalez said that "we can't have this stopping The work has got
to go on " Morgan replied, "Are you trying to say I'm not doing my job9"
Gonzalez answered, "That's the way it looks " Morgan responded, "If that's
the way you feel about it, I don't think I want to work for a chicken s-
mother f- like you." (Counsel for the General Counsel, Robert S Breaux,
has aptly and delicately paraphrased this language in his brief, to wit
"Morgan told Gonzalez he did not feel he wished to work for a person who
he described as an incestuous copulator associated with the excrement of
certain barnyard fowls " Of this language Knapp said, "it's more the vernac-
ular in this type of industry."
8 According to Walter A. Hammann III, personnel assistant , he informed
Morgan , "You're being terminated for calling V V. a chicken s- mother
f-"
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hundred miles recruiting people and run off those that you
had here working for you locally." Fink's response was
negative . Fink called Knapp's attention to the fact that
Morgan had been "called up . . . in the preceding Septem-
ber . . . [and] warned at that time that if there was another
incident, that it would be his job, he would be terminated."
Prior to Fink's return on Monday,' Knapp had talked to
Personnel Assistant Walter A. Hammann III, who among
other things informed him that Morgan "did use this lan-
guage in the presence of Mr. Hammann, Mr. Knight [a
supervisor], Mr. Gonzalez, and Mr. Adams in the
Company's offices , and that Mr. Adams went so far as to
take him outside and cool him down because he was going
to whip everybody that was in the office."
On December 20, 1974, Adams and Morgan met with
company representatives after which the Company refused
to erase Morgan's discharge.10 Knapp did not attend.
Thereafter Knapp learned from Fink that the Company
was going to stand on its decision; that if the Union "felt
like that [it] could win the case in arbitration, all he could
tell [Knapp] to do was to exercise [his] rights under the
agreement ." Adams also reported to Knapp his lack of suc-
cess in the meeting involving Morgan's grievance.
After Knapp' s final communication from Fink, Knapp
resolved not to arbitrate Morgan's grievance. Knapp ex-
plained:
Based on this contractual agreement, based on the
allegations , based upon my investigation with the
Company's representatives, and my conversations
with the Union steward, I felt that Mr. Morgan's case
was completely devoid of any merit to proceed to arbi-
tration... .
Knapp denied that Morgan's nonunion status entered
into his decision not to arbitrate. His denial is credited.
There is no credible evidence that Knapp was cognizant
of the representations on the subject of arbitration which
Adams communicated to Morgan. Nor is there any credi-
ble evidence that the Union pursued a policy which denied
access to the arbitration provisions of the contract for non-
union members. Finally, while there may be honest differ-
ences of opinion as to the strength of Morgan's claim to
reinstatement, the evidence does not support a conclusion
that Knapp's decision was so preposterous and lacking in
factual support as to imply discriminatory motives. Thus it
is found that the Respondent's failure to arbitrate was not
grounded on Morgan's nonmembership in the Union. Fair
representation is the duty placed upon the Union and an
honest evaluation of the facts and the probabilities for suc-
cess in a matter involving arbitration satisfies that duty.
Knapp met that duty; for this he cannot be faulted even
though others may have, on the same set of facts, come to
a different conclusion.
The Supreme Court has said in Ford Motor Company v.
Huffman, 345 U.S. 330, 337, 338 (1953):
Their [labor organization] statutory obligation to rep-
resent all members of an appropriate unit requires
9 Fink had been away from Galveston at the time of Morgan 's discharge
10 Fink 's final remarks at this meeting were, "that the company had lost a
damn good welder , and that he had lost his job, and that we had both lost."
them to make an honest effort to serve the interests of
all of those members, without hostility to any... .
The bargaining representative, whoever it may be, is
responsible to, and owes complete loyalty to, the inter-
ests of all whom it represents. . . . A wide range of
reasonableness must be allowed a statutory bargaining
representative in serving the unit it represents, subject
always to complete good faith and honesty of purpose
in the exercise of its discretion.
The Respondent, in considering whether Morgan's griev-
ance ought to have been arbitrated by its agent Knapp, did
not offend these criteria.
The words from Stanley v. General Foods Corp., 508 F.2d
274 (C.A. 5, 1975), are apposite:
The union is not under an absolute duty to pursue a
grievance merely by proof that the underlying griev-
ance was meritorious.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. The Employer is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act and it will effec-
tuate the policies of the Act forjurisdiction to be exercised
herein.
3. By restraining and coercing employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respon-
dent engaged in unfair labor practices within the meaning
of Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices , it is recommended that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact , conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 11
The Respondent International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers & Help-
ers, AFL-CIO, Local 132, Galveston, Texas, its officers,
agents, and representatives, shall:
1. Cease and desist from informing employees that it
will not process their grievances in arbitration because they
are not union members.
11 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
he deemed waived for all purposes
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , LOCAL 132 123
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Post at its business office and furnish to Kelso Ma-
rine , Inc., Galveston, Texas, for posting copies of the at-
tached notice marked "Appendix." 12 Copies of said notice,
on forms provided by the Regional Director for Region 23,
12 In the event that the Board 's 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 "
after being duly signed by the Respondent's representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees 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.
(b) Notify the Regional Director for Region 23, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act other than
those found in this Decision.