Koppers Co., Inc.

National Labor Relations Board - Board Decisions

Mar 20, 1967

163 N.L.R.B. 517 (N.L.R.B. 1967)

KOPPERS COMPANY, INC.
Koppers Company , Inc., Forest Products
Division and Arlee 0. Ricks.
District 50, United Mine Workers of America,
and its Local No. 12366 and Arlee 0. Ricks.
Cases 17-CA-2586 and 17-CB-419.
March 20, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 23, 1966, Trial Examiner James F. Foley
issued his Decision in the above-entitled proceeding,
finding that the Respondent Local No. 12366 and
Respondent Company had not engaged in unfair
labor practices within the meaning of the National
Labor Relations Act, as amended, and
recommending that the complaint as to them be
dismissed in its entirety. The Trial Examiner further
found that the Respondent District 50 committed a
technical violation of the Act, but recommended that
the complaint as to it be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting
brief. The Respondent Unions filed cross-exceptions
to the Trial Examiner's Decision and a supporting
brief. The Respondent Unions and Respondent
Company filed answering briefs to the exceptions
and brief of the General Counsel.
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 these cases 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 briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations' of
the Trial Examiner, with the following addition.
The initial charge involving Respondent Unions
was filed December 21, 1964, and served
December 22, 1964. Under the limitation period in
' The Trial Examiner found that Respondent District b0
interfered with Ricks' right to the use of the Board's processes in
violation of Sec 8(b)(1)(A) of the Act by Poeta's offer to Ricks on
December 28, 1964, through his brother Lystra, to obtain a job for
him if he would withdraw the charges that he had filed against the
Respondent Unions The Trial Examiner, however, concluded
that this was a technical violation, and recommended that no
remedy should be ordered as it would not effectuate the purposes
of the Act We agree with this finding For the reasons set forth in
the Trial Examiner's Decision and in the circumstances disclosed
by the record as a whole, we also adopt his recommendation not to
issue a remedial order with respect thereto
2 The relevant portion of Sec 10(b) reads
Whenever it is charged that any person has engaged in or
is engaging in any such unfair labor practice, the Board, or
517
Section 10(b) of the Act,2 the complaint which might
ha•,e issued based upon this charge could have
alleged as unfair labor practices any activities of
Respondent Unions occurring not more than 6
months prior to December 22, 1964. However, on
January 26, 1965, the Charging Party requested the
withdrawal of his charge which had alleged that,
since on and after September 11, 1964, the
Respondent Unions had refused to process a
grievance on his behalf. On January 27, 1965, the
Regional Director approved the withdrawal request.
On May 28, 1965, the Regional Director notified the
Respondent Unions that, at the request of the
Charging Party, he was reinstating the original
charge. Thus, the issue presented by these events is
whether in view of the withdrawal of the charge its
reinstatement legally operated to revive the 10(b)
limitation period of the original charge.
The Board has held that the proviso to Section
10(b) enacts a 6-month statute of limitations.3 In
each case, the 6-month period is determined by the
date of service of the charge. Thus, a day 6 months
earlier becomes the cutoff date and activities
occurring before such date may not be alleged as
unfair labor practices. The practical effect of the
proviso to Section 10(b) is that, absent the existence
of a properly served charge on file, a party is assured
that on any given day his liability under the Act is
extinguished for any activities occurring more than 6
months prior thereto.
The original charge in this case was served
December 22, 1964, making the Respondent Unions
liable for their activities occurring after July 22,
1964, but freeing them of liability for acts preceding
that date. When, however, the Regional Director on
January 27, 1965, notified the parties that he had
approved the withdrawal of the charge, the situation
changed. On that date, or on any date thereafter on
which a charge was not on file, Respondent Unions
had the right under the statute to be assured that
they would not be held liable for activities occurring
more than 6 months past. To permit the May 28
reinstatement of the December 22 charge to revive
the Respondent Unions' liability for the alleged
refusal to process the Charging Party's grievance
would amount to a circumvention of the proviso to
Section 10(b).4 Accordingly, we shall dismiss the
complaint.
any agent or agency designated by the Board for such
purposes, shall have power to issue and cause to be served
upon such person a complaint stating the charges in that
respect, and containing a notice of hearing before the Board
or a member thereof, or before a designated agent or agency,
at a place therein fixed, not less than five days after the
serving of said complaint Provided, That no complaint shall
issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person
against whom such charge is made
Cathey Lumber Co , 86 NLRB 157, enfd 185 F 2d 1021
(C A 5), vacated on other grounds 189 F 2d 428 (C A 5)
4 Olin Industries, etc , 97 NLRB 130, 132-133
163 NLRB No. 64
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES F FOLEY , Trial Examiner : These cases,
17-CA-2586 and 17-CB-419, were brought under Section
10(b) of the National Labor Relations Act, as amended (61
Stat . 136, 73 Stat . 519), herein called the Act, against
Respondent Koppers Company , Inc., Forest Products
Division (herein called Respondent Company), and
Respondents District 50, United Mine Workers of America
(herein called Respondent District 50), and its Local
No 12366 (herein called Respondent Local).' A complaint
against Respondent Company was issued by the Board's
Regional Director for Region 17, Kansas City, Missouri, on
April 9, 1965, premised on a charge filed by Arlee O. Ricks
on December 21, 1964. A complaint against Respondent
Unions was issued by the Board ' s Regional Director on
June 7, 1965 , premised on a charge filed by Ricks on
December 21, 1964, and amended charges filed May 28,
1965, and June 4, 1965.2 By the Regional Director's order
of June 7, 1965, the cases were consolidated and set for a
consolidated hearing.
The complaint against Respondent Company alleges
that Respondent Company violated Section 8 (a)(1) and (3)
of the Act by discharging Charging Party Ricks on or
about August 31 , 1964, and refusing to reinstate him
thereafter "because of his interest in, and/or because he
engaged in concerted activity for mutual aid and
protection." The complaint against Respondent Unions
alleges that they have violated Section 8(b)(1)(A) and (2) of
the Act by refusing since on or about September 11, 1964,
to process a grievance under the collective-bargaining
contract between them and Respondent Company, dealing
with Rick ' s discharge on or about August 31, 1964,
pursuant to a request made by Ricks to Respondent
Unions on or about September 11, 1964.
On June 16 , 1965, the Regional Director amended the
complaint against Respondent Unions to include the
additional allegations that Respondent Unions violated
Section 8 ( b)(1)(A) and (2) of the Act by failing and refusing,
I Both unions are called Respondent Unions or Unions when
referred to jointly
2 Charging Party Ricks withdrew his December 21 charge on
January 26, 1965, and the Regional Director approved the
withdrawal on January 27, 1965 The Regional Director informed
the Unions on May 28, 1965, that he was reinstating the
December 21 charge The amended charge filed May 28 was
attached to the letter
3 Ricks' amended charge of May 28, 1965, repeated the
allegation in the December 21 charge that Respondent Unions
caused Respondent Company to discriminate against Ricks since
September 11, 1964, by refusing since that date to process under
the contract Ricks' grievance dealing with his discharge, and
added that Respondent Unions, on or about May 11, 1965, caused
since on or about July 30, 1964, to fairly represent
Charging Party Arlee Ricks; and Respondent District 50,
United Mine Workers of America, one of the Respondent
Unions, violated Section 8(b)(1)(A) and (2) by inducing
and/or seeking to induce Charging Party Ricks, since on
or about September 11, 1964, to refrain from filing the
unfair labor practice charge he filed herein against
Respondent Unions, and/or requesting he withdraw the
charge after he filed it, by promising to obtain employment
for him with another employer at a higher rate than he
received when employed by Respondent Company, and by
misrepresenting the rate of pay he would receive from
Tierra Royal Potteries, Inc., the other employer. At the
hearing on September 14, I granted General Counsel's
motion for leave to amend the amended complaint by
striking the allegation that Respondent Unions violated
Section 8(b)(1)(A) and (2) by failing and refusing since
July 30, 1964, to fairly represent Charging Party Ricks.
The motion was not opposed.
Respondent Company, by answer filed April 16, 1965, as
amended November 11, 1965, admitted the discharge and
refusal to reinstate, but alleged this action was for
absenteeism, and for reporting for work in a condition
indicating recent consumption of alcoholic beverages, and
not for any discriminatory reason or motive. It denied it
engaged in illegal conduct. Respondent Unions, in answers
filed June 9 and 23, 1965, denied all allegations of illegal
conduct in the complaint of June 7, and amendment of
June 16, 1965, against them. On September 14 and
November 11, 1965, I granted Respondent Unions motions
for leave to amend their answer to include the defense that
no charges were filed within the 6-month period as
required by Section 10(b) of the Act to support the
allegations in the amended complaint .' At the hearing on
November 11, 1965, Respondent Unions made a motion
that the complaint against them, insofar as it alleged in
section 6(b) that since September 11, 1964, they had
refused to process Ricks' grievance dealing with his
discharge on August 31, 1964, be dismissed. They
argued that since Ricks withdrew his charge on
January 26, 1965, and the withdrawal was approved on
January 27, 1965, the charges supporting the complaint
are the amended charges filed May 28 and June 4, 1965,
and, therefore, any conduct occurring prior to
November 28, 1964, is precluded by Section 10(b) of the
Act from being considered a violation since it occurred
prior to the 6-month period antedating the amended
charge filed on May 28, 1965. I reserved ruling on this
motion.
A hearing on the amended complaints and amended
answers was held before me on September 14 and
November 9, 1965, in Memphis, Tennessee, and on
Tierra Potteries, Inc , to discriminate against Ricks by refusing to
process a grievance under the contract between Respondent
Unions and Tierra Potteries, Inc The amended charge of June 4,
1965, retained the allegation of a refusal to process Ricks'
grievance under the Respondent Company-Respondent Unions
contract, but deleted the allegation dealing with a refusal to
process a grievance under the contract Respondent Unions had
with Tierra Potteries, Inc , and replaced it with the allegation that
Respondent Unions by the refusal on September 11, 1964, and
thereafter, to process the grievance under the Respondent
Company-Respondent Unions contract, and "By the above and
other acts and conduct, have restrained and coerced and are
restraining and coercing its employees in the exercise of their
rights guaranteed in Section 7 of the Act "
KOPPERS COMPANY, INC. 519
November 10 and 11 , 1965, in Kansas City, Missouri.4
General Counsel , Respondent Company, and Respondent
Unions were represented at the hearing. All parties were
afforded an opportunity to offer evidence , make oral
argument , and file briefs. General Counsel , Respondent
Company, and Respondent Unions filed briefs after the
close of the hearing.
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT COMPANY
Respondent Company is a Delaware corporation with its
principal place of business in Pittsburgh, Pennsylvania. It
maintains and operates a plant in Kansas City, Missouri,
and an office connected therewith, where it is engaged in
the manufacture of treated wood products. The plant in
Kansas City, hereinafter referred to as Respondent
Company, annually sells products and services, valued in
excess of $50,000, to customers located outside the State
of Missouri, and annually purchases goods and services,
valued in excess of $50,000, from sources located outside
the State of Missouri. I find that Respondent Company is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and assertion of jurisdiction will
effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Unions are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background Evidence 5
Respondent Company and Respondent Unions have a
collective-bargaining contract. This contract, herein called
the Contract, was executed for the period February 1,
1964, to February 1, 1967. The appropriate unit is
comprised of all plant employees except foremen, office
employees, watchmen, and technical employees who are
not replacements for rank-and-file employees. There is no
union-security clause in the contract. As of July 13, 1964,
there were 40 employees included in the appropriate unit.
There were approximately 30 at the time of the hearing.
The membership in Respondent Local is restricted to
employees of Respondent Company. Ninety-nine percent
of the employees in the unit as well as 99 percent of the
members of Respondent Local were Negroes at the time
material to this proceeding. The record discloses that as of
July 31, 1964, there were four white employees. They were
Walter Moore, employed since 1927, who was vice
president of Respondent Local, and succeeded Marshall
Singleton as president in November 1964; Freeman Pryor,
employed since 1927, who was secretary-treasurer of
Respondent Local; Refugio Navarette, a Mexican of
Spanish descent, employed since 1924, and chief steward
of Respondent Local; and Wilmur Reed, employed since
June 9, 1964. He did not remain long in Respondent
Company's employ, and the record does not show whether
he became a member of Respondent Local. An employee
must work 30 working days before he is eligible for union
membership.
Article III of the contract provides a five-step grievance
procedure. In the first step, the dispute or grievance is
discussed between the aggrieved employee and his
foreman, or Respondent Company's management. The
second step provides that if the matter is not settled, the
aggrieved employee discusses it with the foreman and
management through Respondent Local's grievance
committee, herein called the Committee. If it is not
resolved within 10 working days from the date it occurred,
under the third step, it is reduced to writing, and turned
over to the Committee for discussion with Respondent
Company's management . If it remains unresolved after
this third step is taken, it is then discussed between
representatives of Respondent District 50, United Mine
Workers (director and assistant director of its region 55),
and the representatives or executives of Respondent
Company. This is the fourth step. The fifth and final step,
to be invoked when the grievance remains unresolved, is
final and binding arbitration by a board of arbitration
consisting of a member selected by Respondent Company,
a member selected by the Unions, and a neutral member
selected by the Company and the Unions.
Section 3 of the constitution of Respondent District 50
provides that all questions involving membership and
membership rights as well as other matters of dispute,
appeals, and grievances, shall be first disposed of by the
local union. Individual members may appeal a local
union 's decision to the executive board of District 50. The
decision of the Board is final and binding unless revised by
a convention of District 50. Section 4 of the constitution
provides the general outline for the procedure to be
followed in an appeal to, and its disposition by,
District 50's executive board.
On July 29, 1964, Charging Party Ricks was informed by
Robert J. Lantz, general yard foreman, that he was laid off
temporarily due to a breakdown of the power crane. The
layoff was untij the crane was repaired. Five or six other
employees were similarly affected. On July 29, Ricks, who
began his employment on June 8, 1964, was employed on
the second shift or night shift. The night shift began at 3:30
p.m. following the completion of the first or day shift which
began at 7 a.m.
Between 1 p.m. and 2 p.m. on July 30, there was a
meeting in the yard office of Respondent Company
hurriedly called by Marshall Singleton, president of
Respondent Local, in regard to a complaint lodged with
him at his home before noon by Charging Party Ricks
regarding his layoff. Ricks stated to him that Wilmur
Reed, an employee in the same contract classification but
with less seniority, had been retained while he was laid off.
Lystra Ricks, a brother of Ricks, drove Ricks to
Singleton's home in his automobile. The three of them
went to the plant in this automobile.
At the outset of the meeting, there were present
Singleton, who had been employed by Respondent
* The hearing was opened on September 14 at the Kennedy
Veterans Administration Hospital, Memphis, Tennessee, to
permit Charging Party Ricks to testify Ricks was a patient at the
hospital for an illness that had no connection with his employment
by Respondent Company or at Respondent Company's plant, or
with his employment by Tierra Royal Potteries, Inc., or any other
employer It was the result of an accident that occurred on
nonworking time Ricks ' illness became aggravated during his
testimony on September 14, and the hearing was discontinued
until November 9 to permit him to recover sufficiently to testify
He completed his testimony on November 9 The remainder of the
evidence was received in Kansas City on November 10 and 11.
s Minor corrections in the transcript have been noted and
made
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company since 1924, and was a member of the Local's
Committee as well as its president; Vessie Stiggers
employed since 1946, at the Kansas City plant ,6 who was
recording secretary of Respondent Local, and a member of
the Committee; Refugio Navarette, employed since 1924,
who was chief steward of Respondent Local and a member
of the Committee; Ray Adkins, employed since 1947, who
was a steward of Respondent Local, and a member of the
Committee; Lystra Ricks, employed since 1924, who was
the other steward of Respondent Local, and a member of
the Committee,7 and Robert J. Lantz, general yard
foreman of Respondent Local, who was in charge of yard
operations. After the meeting was underway, Randolph
Piepho, manager in charge of Respondent Company's
Kansas City plant for the 2 years prior to the date of the
meeting, who was unaware of the meeting, entered the
yard office on other business, and being apprised of what
was taking place, remained, and participated in the
meeting. Ricks, who had been instructed to remain in
Lystra Ricks' car, by Lystra and Singleton, was brought
into the meeting shortly after Piepho entered the yard
office. The events of the meeting concerning which
testimony was given, began with Arlee Ricks'
representations to Plant Manager Piepho.
Ricks first complained to Piepho that he had not
received 3 days' notice of layoff as required by the
Contract. The Contract provides that a regular employee
(one having worked 30 days) to be indefinitely laid off is
entitled to 3 to 5 days' notice. Piepho said that Ricks had
not been indefinitely laid off, that a layoff because of the
breakdown of the crane was not an indefinite layoff, and
no notice could be given because a breakdown of that
nature could not be anticipated.
Ricks next complained that Wilmur Reed, who had less
seniority than he had, was retained although he was laid
off. Piepho looked at a list dated July 13, 1964, prepared by
Respondent Company, on which were listed the names of
employees in an order beginning with the name of the
employee with the earliest first day of employment, under
the caption "SENIORITY LIST." Beside the name of the
6 Stiggers, who had been employed by Koppers Company, Inc ,
40 to 45 years, had the contract classification of leadman checker,
and was in charge of the six or seven employees on Respondent's
night shift Stiggers responsibly directed the night-shift
employees , even though he received orders from Robert J Lantz,
Respondent Company 's general yard foreman, before the latter
left for the day when the day shift ended at 3 30 p in I find
Stiggers to be a supervisor within the meaning of Section 2(11) of
the Act
' There were seven members on the Committee in 1964
However , only four of them met with representatives of
Respondent Company They were Singleton , Stiggers, Navarette,
and Adkins . Respondent District 50's constitution requires a
minimum of three
" There is no evidence that Hawkins , whose first day of
employment was May 12 , 1964 , was discriminately denied the job
Reed was given I do not credit Ricks ' testimony that Hawkins
applied for this work , and was denied it His testimony is purely
conclusionary , and lacks any connection with knowledge or fact
Ricks testified that when he was discharged on August 31, 1964,
Hawkins was doing the work of a mechanic 's helper
9 Ricks complained to the President 's Committee on Equal
Employment Opportunity that he had been discriminated against
because of race by his layoff and the retention of Reed By an
amendment dated August 4, 1964, there was included in the
collective - bargaining Contract a provision that Respondent
Company as a Federal Government prime contractor or a first tier
employee, was listed the first day of employment. Piepho
saw on the list that Reed's first day of employment was
June 9, 1964, and Arlee Ricks' first day was June 8, 1964.
Reed had 1 day less seniority than Ricks. He asked Yard
Foreman Lantz for an explanation, and the latter replied
that Reed, while not a mechanic, was good at repair work,
and had been assigned to work in the repair shop, and was
working on the repair of the crane, and he thought he was
needed for that work. Ricks was employed as a materials
handler at the time of the July 30 meeting. Ricks in
response to a question by Lantz or Piepho said he had no
experience in the work that Reed was doing, but that he
had experience in a prior job as a forklift operator. Ricks
stated that Sylvester Hawkins, a Negro, had experience in
the work Reed was doing, had more seniority than Reed,
and had applied for the job that Reed had.8 Piepho said to
Ricks that other employees had been laid off with him, and
several of them had more seniority than he had. He added
that he would have been laid off because of this
circumstance even if Reed had been laid off.`'
Ricks them reverted to his claim that he was entitled
under the Contract to 3 days' notice before layoff. Piepho
again told him he was not on indefinite layoff.10 Ricks
argued that he was on indefinite layoff as he did not know
when the crane would be repaired. Feelings mounted, and
Piepho said that if he wanted something definite he could
make the layoff permanent, and Ricks answered that if he
intended to make it permanent he should notify the
Committee at that time that he was going to fire him so
that they would know what to do about it. Piepho replied
that he would not do that. Piepho then said to Lantz, "Bob
I suggest we walk right out of this meeting. This man
makes me sick the more he talks."" Singleton said to
Ricks that he had worked only 29 days, and that under the
Contract Respondent Company was not required to recall
him. The Contract provides that Respondent Company
bears no responsibility for recalling or rehiring employees
laid off or discharged unless they have worked 30 days.
After the 30 days, they are placed on the seniority lists of
subcontractor would adhere to the provisions of Executive Order
10925 , as amended by Executive Order 11114 , which prohibits
discrimination against any employee or applicant for employment
because of race , color , creed , or national origin In a letter dated
December 9 , 1964, from the Director, Fair Employment Program,
Office of the Assistant Secretary , Department of the Army, Plant
Manager Piepho was informed that the Department of the Army
has been advised by the President 's Committee on Equal
Employment Opportunity that there was no evidence to
substantiate the allegations of discrimination filed by Mr Arlee 0
Ricks against your company and the case file has been closed "
By an amendment to the Contract dated October 22, 1964, there
was added to the work classifications in group II of appendix A of
the contract the classification of mechanic's helper
11 The notice of 3 to 5 days applies only to an indefinite layoff,
and to a regular employee On cross -examination , Ricks admitted
he had had no experience in repair or maintenance work , and had
no knowledge of the length of employment of the other employees
laid off with him
n This is Ricks' testimony Piepho testified that Ricks irritated
him, and that he disclosed he lost his temper by asking Lantz to
leave the meeting with him I have credited the testimony and
other evidence which disclose the facts of the case In doing so, I
have credited some testimony by Ricks, some by Piepho, and
some by other witnesses N L R B v Universal Camera
Corporation , 179 F 2d 749, 754 (C A 2), reviewed on other
grounds 340 U S 474
KOPPERS COMPANY, INC. 521
their respective work classifications.12 Either Piepho or
Lantz agreed to let Ricks work on July 30 so that he would
have the benefits of a regular employee under the
Contract.
Piepho, Lantz, and Singleton left the meeting, and
discussed the procedure that should be followed in
processing a grievance under the Contract. Piepho then
said to Singleton that it should be done in an orderly
manner, that the meetings should be held in his office, and
that he should not be taken by surprise by their being held
without notice to him. Singleton agreed. He expressed
regrets to Piepho and Lantz for the disturbance at the
meeting, and said that Ricks could not be told anything.
Ricks worked on Friday, July 31. About 7 a.m. on Monday,
August 3, 1964, General Foreman Lantz telephoned him
and asked him if he could operate a forklift. When he said
he could, Lantz assigned him to this work in the place of
Roy Adkins who was on vacation. On Monday he had two
helpers, but the remainder of the time he did not have any
helpers. Ricks testified that Adkins had two helpers, and
that at times he was one of the helpers. '3
Ricks worked on the day shift until August 19, 1964, and
at that time was transferred to the night shift. Ricks
worked overtime by working on the night shift 32 hours
during the week ending August 9, 16 hours during the
week ending August 16, and 9-1/2 hours during the week
ending August 23. Ricks testified that on Wednesday,
August 19, 1964, General Foreman Lantz said to him,
"Ricks, I'm going to have to put you on the night shift
because we are going to have to have somebody we can
depend on, and we can never tell when these other guys
are coming back to work." Ricks, while on the day shift,
asked for night-shift overtime work. Lantz and Stiggers
gave him this work along with other employees when
temporary replacements were needed.
B. The Discharge
Ricks did not report for work on the night shift of
Monday, August 24, 1964, and did not call in to inform
Respondent he would not report." There was a telephone
in the hall of the rooming house where Ricks and his
brother were staying. Ricks testified that he did not appear
for work for personal reasons. When asked what the
reasons were, he said that if he would offer a reason he
would just say he was tired.15 On August 28, Ricks
appeared in a taxicab at the plant of Respondent Company
sometime between 4 and 5 p.m. He was scheduled to work
the night shift which began at 3:30 p.m. His brother Lystra
talked to him. Ricks accused Lystra of not calling for him,
and the latter replied that he was not obliged to bring him
to work. Ricks had been drinking. This was apparent to
Leadman Stiggers from Ricks' appearance, and from the
odor of alcohol emitted by him. Stiggers told Ricks to
change from his street clothes into his work clothes, and to
keep out of sight. Stiggers assigned Ricks to work in the
gondola freight car that was being unloaded. Ricks, a
materials handler, hooked and unhooked at the ground
level the cable placed around materials being lifted from
or loaded on to a freight car by the crane. Stiggers placed
him in the gondola car so Yard Foreman Lantz would not
see him. Lantz, however, saw Ricks in the freight car, and
asked Stiggers what he was doing there. Stiggers
answered that he placed him there so he [Lantz] would
not see him, that he had been drinking. Stiggers also said
to Lantz that he was all right, and that he would keep an
eye on him." On cross-examination at the hearing on
November 9, 1965, Ricks was asked by counsel for
Respondent Company the question, " Isn't it true that you
were drinking on the morning of Friday, August 28th?"
Ricks answered, "On the morning of Friday, August 28th,
I would say yes, I might have been drinking on August
the 28th." The weekly timesheet for Ricks for the week
ending August 30, 1964, prepared by Stiggers, credits him
with having worked 8-1/2 hours on the night shift of
August 28.
On Saturday morning, August 29, Lantz informed
Piepho of the late arrival of Ricks the prior afternoon for
the night shift, and that he had been drinking before he
reported in. Lantz identified Ricks as the employee who
had protested his layoff on July 30 because of the
breakdown of the crane. Lantz asked him what he should
do. Piepho replied: "Bob, we couldn't, it's gone now, it's
over and we can't prove it. Just let's see what happens in
the future. Keep your eye on him."
12 The inclusion on the list of employees dated July 13, 1964,
with the caption "Seniority list" of the name of Arlee Ricks who
had only 22 days of employment on July 13, 1964, did not make
him a regular employee within the meaning of the contract by the
principle of waiver or any other principle Obviously, the July 13,
1964, list is not a seniority list within the meaning of the Contract
This is elementary On July 13 and July 30 , Ricks was a temporary
employee and not a regular employee , and was not entitled to the
benefits accorded a regular employee under the Contract
13 General Counsel argues that Ricks received less favored
treatment when the helpers were assigned elsewhere after the
first day There is no merit to this argument There is no evidence
that Ricks needed helpers after the first day It must be assumed,
absent to the contrary , that Respondent was within its rights in
assigning the helpers elsewhere after the first day There may
have been a more compelling need for their services on other
assignments , or the work that Ricks was doing may not have
required helpers
" Sec 7 of the Contract provides-
Employee is expected to notify his foreman in advance
when he expects to be absent on one of his regularly
scheduled work days
Any employee absent from work by reason of sickness or
any other reason beyond his control, shall be expected to
notify his foreman as soon as possible when he expects to be
able to return to work
15 When an employee is absent without notice the night shift is
worked short - handed A pool of surplus workers is not available to
draw on in case a scheduled worker does not report If the
employee gives notice , Lantz or Stiggers finds an employee on the
day shift willing to work additional hours on the night shift Where
there is no notice , they cannot obtain a replacement because the
day-shift workers are gone before it is apparent the scheduled
employee is not going to report
16 This is Stiggers ' testimony , which I credit It is corroborated
by Lantz' testimony Stiggers , leadman checker in charge of the
night shift , and recording secretary of Respondent Union,
Singleton , president of Respondent Local until November 1964,
Lantz, and Respondent Company Plant Manager Piepho , testified
for General Counsel under subpena Stiggers and Singleton, like
Ricks, are colored I granted General Counsel's motions for leave
to ask leading questions of Stiggers , Singleton , and Piepho, under
sec 43(b) of the Federal Rule of Civil Procedure Stiggers and
Singleton were officers of Respondent Local at the time in issue,
and Piepho was an officer of Respondent Company . General
Counsel seeks to impeach the testimony Stiggers gave as his
witness General Counsel offered in evidence Stiggers ' pretrial
affidavit I received it because of four variances between Stiggers'
testimony and the contents of the affidavit Stiggers testified he
was a leadman checker in charge of the night shift , but denied he
was a foreman , while the affidavit carries the statement that he
was a foreman I have previously found he was a supervisor within
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ricks who had been assigned to work on the night shift
of Saturday, August 29, 1964, did not report for work on
that shift, or personally give notice that he would not
report. Ricks testified that he overslept, did not wake up
until 5:30 p.m. , and did not call in at 5:30 because he
thought it would be too late to do so. On cross-examination
by counsel for Respondent Company, Ricks testified he
had been drinking on Saturday morning, and on cross-
examination by counsel for Respondent Union he testified,
"I drank some beer on Saturday morning." On rebuttal by
General Counsel, he testified he drank approximately
"three beers." Between 3 p.m. and 3:30 p.m. on Saturday,
Lystra Ricks telephoned Foreman Lantz at the yard office,
and informed him that Ricks would not report for work
that day. Stiggers was in the office when Lantz received
the telephone call, and was informed by Lantz of the
message Lystra gave him.
About 3:30 p.m., Piepho and Lantz were on the loading
dock, which is between the place where employees park
their automobiles, and the bathhouse or changehouse
where employees change their clothes, when Lystra Ricks
parked his automobile and alighted from it. When Lantz
saw Lystra, he remarked to Piepho that Ricks was not with
him, and either Lantz or Piepho asked Lystra where his
the meaning of Sec 2(11) of the Act, as he responsibly directed
the employees on the night shift One can be a leadman and still
be a supervisor When shown the affidavit he continued to insist
he was a leadman and not a foreman He could not account for the
statement in the affidavit signed by him that he was a foreman In
the affidavit is the statement that he (Stiggers ) obtained a
replacement for Ricks on August 29, 1964, when he did not report
to work Stiggers testified he was not able to obtain a replacement
for Ricks on that date However , when shown the statement, he
testified that he obtained a replacement , but did not recall the
identity of the day -shift employee who was the replacement
The third variance between the oral testimony of Stiggers and
the statement signed by him relates to the reasons Piepho gave
him for Ricks ' discharge on August 31, shortly after the
discharge . His oral testimony is that Piepho told him he was
discharged for not taking care of his job, and for reporting to work
after he had been drinking when it was dangerous just working on
the crane at night without drinking , and that he could not put up
with it In the affidavit is the statement that Piepho said "he
wouldn't come to work, and didn't take care of his job " There is
no reference to drinking The fourth variance between the oral
testimony and the affidavit is that Stiggers testified that he was
present at a meeting on September 11, 1964, between Piepho and
the Committee , and in that meeting Piepho in stating the reasons
for Ricks ' discharge said that Ricks had violated a company rule
against drinking Stiggers also testified that he discussed the
discharge with members of the Committee between August 31,
1964 , and the September 11, 1964 , meeting with Piepho, and he
was asked if Ricks had been drinking on August 28, and he told
them he had had some liquor but was not drunk Stiggers' signed
statement contains no reference to the September 11, 1964,
meeting , or to the conversations Stiggers had with the other
Committee members
The affidavit of Stiggers is a paraphrasing by the Regional
Office representative who interviewed him of the answers
Stiggers gave to his questions Stiggers' difficulty in reading and
his slowness in comprehension and speech , during his testimony,
are in contrast to the erudition of the statement prepared by the
Regional Office representative It could well be that the Regional
Office representative summarized Sttggers' testimony that he was
a leadman in charge of the night shift in terms of the
conclusionary statement that he was a foreman , and that Stiggers
did not catch this language of the Regional Office representative
Stiggers worked the day shift of January 12, and was interviewed
while at work and in his dirty work clothes Obviously, he was
anxious to return to his duties This desire coupled with his
brother was. Lystra answered, "Well, in his condition, in
the shape he is in, you wouldn't want him on the job."
Lantz asked Lystra if Ricks was drunk, and the latter
replied, "Well, I am not going to say he is, but you know
how it is." This ended the conversation between Lystra
Ricks and Piepho and Lantz. Piepho testified that he and
Lantz decided on that Saturday afternoon to discharge
Ricks." Stiggers had obtained a replacement for Ricks
from the day shift after Lantz told him of Lystra's message
that Ricks would not report for work that day.
At 7 a.m. on Monday morning, August 31, 1964, Ricks
reported for work on the day shift. On Friday, August 28,
1964, Lantz assigned Ricks to the job of forklift operator as
he had applied or bid for this job. He was assigned to this
work on the day shift effective Monday, August 31. When
Lantz had made the assignments to all the employees
except Ricks, on this Monday morning, and was walking to
the yard office with him, Piepho appeared, and asked him
if he was going to let Ricks work. Lantz said "No, we are
on our way to the office now." When Lantz and Ricks
reached the office, Lantz said, "Ricks we are going to have
to let you go " He asked why, and Lantz replied, "because
you didn't show up for work on Saturday." Ricks testified
he said that Saturday was an optional day, and Lantz told
slowness in comprehension and reading could account for his
failure to question the statement he was a foreman when the
Regional Office representative read the statement to him, or he
read it The lapse of time between the date of August 29, 1964,
when Ricks failed to return to work, and the date of November 11,
1965 , when Stiggers testified , and the awareness of the difficulty
he ordinarily had in obtaining a replacement just prior to the
beginning on the night shift, especially on a Saturday , can account
for his testimony , prior to his recollection being refreshed , that he
did not obtain a replacement for Ricks on August 29, 1964
Stiggers testified he did not recall that the Regional Office
representative asked him anything about drinking It could well
be that since Stiggers was in a hurry to return to work, the
Regional Office representative hurriedly asked him leading
questions, and having had only the benefit of what Ricks told him,
and the letter Piepho gave Ricks on August 31, was not aware that
drinking was a factor , or that steps had been taken to process a
grievance , and therefore , in his questioning , made no reference to
drinking , or to the September 11, 1964, meeting , or discussions
that Stiggers had with the Committee If he only asked Stiggers
whether Piepho had said that Ricks "wouldn ' t come to work, and
didn 't take care of his job," Stiggers could well have made the
laconic reply of yes, and no more , as he could not have been
enthusiastic about the charges filed against the Respondent
Company for which he was a supervisor , and Respondent Local
for which he was recording secretary There is no evidence that
the Regional Office representative asked him if Piepho on
August 31, 1964, said anything else, or specifically, if he said
anything about drinking , or asked him if he and the Committee
had met with Piepho in regard to a grievance Ricks had asked
Singleton on August 31, 1964, to process, or what was said at such
a meeting , if it was held.
I find from the demeanor and substantive testimony of Stiggers
that his oral testimony is credible, and is not impeached by his
statement I find further that his testimony merits, and it has
received, the weight it deserves when considered in the full
context of the record and in relation to the other evidence, both
oral and written I also find that the affidavit of Stiggers is barren
of any references to drinking and to the processing of a grievance
for Ricks because the Regional Office representative did not
question Stiggers regarding these matters , and Stiggers, in the
circumstances of the interview , either did not independently
recall these facts or did not feel he should volunteer them
i' This is the testimony of Manager Piepho It is corroborated
by the testimony of Sttggers and Lystra Ricks
KOPPERS COMPANY, INC. 523
him they were going to let him go anyway.18 Ricks asked
Lantz for a written statement of the reasons for his
discharge. Lantz telephoned Piepho's office, and then told
Ricks that he could pick up the written statement at
Piepho's office when he picked up his check. A clerk in
Piepho's outer office informed Piepho that Ricks wanted a
written statement of the reasons for his discharge. Piepho
prepared a statement and signed it. The statement which
was on the letterhead of Respondent Company was dated
August 31, 1964, and was as follows:
To: WHOM IT MAY CONCERN
The bearer, Arlee O. Ricks, was relieved of his
employment here today, August 31, 1964, because of
frequent absenteeism and tardiness.
./s/ Randolph Piepho
Randolph Piepho
Plant Manager
/s/ R. L. Lantz
R. L. Lantz
Gen. Yard Foreman
Ricks testified that he had Lantz sign it "so that it will
show I have gone through the channels, the grievance."19
Ricks testified that when he was on his way from the yard
office to Piepho's office, he met Singleton and Stiggers,
and asked them to wait until he obtained a letter requested
from Piepho, that he wanted them to read it, and process a
grievance. According to Ricks, when he obtained the
statement and returned to where he had talked to
Singleton and Stiggers, the latter had left, and he showed
the statement to Singleton, who read it. He asked
Singleton what he should do to process a grievance.
Singleton said he would see what he could do about it.
Singleton denied he was shown the statement. He testified
that Ricks said to him that he was on his way to obtain it.
Singleton testified that on August 31 he told Ricks what
the grievance procedure was.
Piepho talked to Singleton and Stiggers in his office
shortly after Lantz told him he was not going to put Ricks
to work.2° He had asked them to come to his office.
Stiggers testified that he said to them that he had to
dismiss Ricks, and gave-this explanation: "He couldn't
take care of his job, and he would come out when he was
drinking. I can't put up with that. It is too dangerous to
work on the cranes at night, let alone come out drinking. I
can't put up with it." He also testified that he said in reply
they would talk to the grievance Committee and see what
they could do, and later on, "the next day, or sometime"
they talked to the Committee. Singleton testified that
Piepho said that Ricks "failed to report to work and his
work wasn't very good," that he asked Piepho when he
failed to come to work, and Piepho said August 29.
Counsel for General Counsel asked Singleton at this time
if Piepho said that one of the reasons he was getting fired
was that he was drinking, and Singleton replied, "I don't
recall that. I don't think I had it in my record."21 Piepho
testified he said the following to Singleton and Stiggers:
Well, I told them that, well after all, 2 days in a row
the drinking problem, once as witnessed by one of the
men themselves, the other time not at work because
of it. And in the interest of safety and company
discipline, I couldn't see how I could tolerate that sort
of performance, and I felt that the wise business
decision to make was to let him go.
At the hearing on November 11, 1965, Piepho was asked
by counsel for Respondent for the reason he did not make
any mention of an alcohol problem in the memorandum or
letter he gave to Ricks on August 31. Piepho gave the
following answer:
I can summarize that by saying I wish I had. I had,
at that moment, many other things on my mind, and
the first thought that went through my mind was what
does he want with it, and what in the world can he
possibly do with it. And I felt that perhaps he would
want to use that as evidence when he went to the
union grievance committee and my thinking was that
well, I myself, personally had never seen him
drinking. I got the news by logical reports, and 'the
absenteeism was something that was a matter of
record, and I quickly prepared the letter along those
lines.
Piepho testified that he did not have any legal advice in the
preparation of the memorandum or letter that was given to
Ricks.
When Plant Manager Piepho was on direct examination
as a witness for General Counsel, he was asked if the
disturbance Ricks had caused in the yard office on July 30,
1964, when he protested his layoff because of the
breakdown of the crane, was "an incident which gave rise
to your decision to discharge him." Piepho answered that
16 When the day shift works on Saturday, the night shift will
work if it is necessary While an employee is only required to work
a 5-day, 40-hour week, when he agrees to work on a Saturday
shift, it is no longer optional with him as to whether he works or
does not work He is required to be present in accordance with the
agreement reached with the foreman Ricks had agreed to work
the night shift on Saturday, August 29 He did not have the option
to work or not work
is According to Ricks, Lantz handed him the statement or
memorandum signed by Piepho, and at that time he asked him to
sign it If that happened, Lantz must have gone to the main office
with Ricks, although there is no testimony that he did
20 Stiggers did not ordinarily appear at the plant at 7 a in. since
he works until the previous midnight. This was a Monday,
however, and he had not worked on Sunday He could not recall
the reason why he was at the plant that early He denied that he
had any knowledge that Ricks was to be discharged Piepho
testified that he ordinarily arrived at the plant about 8 a in He
was neither asked, nor gave , any explanation for his early arrival
on August 31
2i Counsel for General Counsel offered the pretrial statements
of January 12, 1965, of Singleton and Navarette to impeach their
oral testimony as witnesses for General Counsel I received the
statements in evidence for the purpose of ruling on General
Counsel's position that their oral testimony was impeached by the
contents of the pretrial statements I find from consideration of
the oral and demeanor testimony of Singleton and Navarette, and
their pretrial statements, and the other evidence of record
including the testimony Stiggers gave that related to the pretrial
statement he gave, that the oral testimony of Singleton and
Navarette is not impeached by the pretrial statements Their
demeanor impressed me that they were truthful and forthright in
their oral testimony Moreover, I am satisfied that the Regional
Office representative who interviewed them on January 12, asked
them leading questions based on a preconceived opinion of the
facts of the case gained from Ricks' pretrial statement of
December 30, 1964, and the statement Ricks received from
Piepho on August 31, 1964, and paraphrased the answers
Singleton and Navarette gave to the questions in terms of the
narrative in the statements. He did not go further and search for
other evidence not disclosed by the pretrial affidavit of Ricks or
the August 31 statement The omission from statements of matter
disclosed by the oral testimony does not mean it did not occur as
testified, but that a complete investigation of all the facts was not
made
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the incident was not the direct cause as some time had
elapsed between it and the date of the discharge, but that
it was one of the factors which led him to conclude that an
absence of 2 days in a week was excessive absenteeism.
He characterized Ricks' conduct at the July 31 meeting in
the yard office as insubordination as well as a disturbance.
Piepho also testified that the July 30 incident led him to
believe that Ricks was not a particularly good employee.
General Counsel introduced oral and written evidence
of employees who had reported for work under the
influence of liquor, but had not been discharged. Donald
Napoleon Duncan, an employee of 15 years, received a
letter of warning dated March 1, 1965, in which he was
charged with poor job performance on February 27, 1965,
because of excessive drinking. Reference was made in the
letter to previous drinking incidents for which he was
verbally reprimanded. The letter carried the warning that
any recurrence of this conduct could lead to disciplinary
action. On March 17, 1965, Duncan received a written
confirmation of oral disciplinary action by Foreman Lantz
on March 12, 1965. He was laid off for 2 weeks because he
reported for work on March 12, 1965, "while under the
influence of alcohol." He was told that the next occurrence
would mean the termination of his employment.22 Duncan
was employed at the time, of suspension as a tally or
records clerk. In the letter of March 1, 1965, to Duncan,
which was signed by Piepho, is a reference to many good
days of work by Duncan over the 15 years of his
employment, with bad days "every now and then," and, the
opinion that the bad days were the result of a drinking
problem.
On a work day in May or June 1964, Plant Manager
Piepho found that employee Willie Ross, a lift-truck
operator, had been drinking, and had spilled a load of
railroad ties. He instructed him not to operate the
equipment that day. The following day Piepho took the lift-
truck operator job from him, and assigned him to less
hazardous work. At the time of the incident, Ross had
been an employee of 20 years. In regard to the action he
took, Piepho testified as follows:
In the case of Ross, Ross had been with the
company for years. I knew the man reasonably well. I
felt this discipline would straighten him out and as
long as he didn't ever get on a forklift truck, he would
give the company many good days of services on work
he could do., After all, if I would terminate him, he
would lose seniority, pension, yes, I used the best
judgment that I possibly can and at times the
treatment we give our older employees is different
than that we give new employees.
On cross-examination by General Counsel, Yard Foreman
Lantz testified that he had taken disciplinary action
against certain employees who had reported for work
under the influence of liquor. They were employees of at
least 15 years' service. Lantz testified that he sent them
home. They were not fired. He also testifi:._ that he
warned these employees about their drinking, but did not
warn Ricks. Also on cross-examination, employee Walter
Moore who had been employed by Respondent Company
for 38 years, and was president of the Respondent Local at
the time of the hearing, testified in response to General
22 Respondent Company began the practice in January or
February 1965, of giving written warnings to employees for
infraction of rules of employment, and of placing the written
warnings in the employees' personnel files.
23 The question assumes, contrary to the evidence, that Ricks
was discharged for absenteeism only
24 Since Lystra Ricks did not know whether Carmickle's
absences were excusable, either by personal knowledge of the
Counsel's leading questions, that he had knowledge of
employees reporting for work who had been drinking and
had not been fired. Counsel for General Counsel did not
ask Moore if Piepho, Lantz, or Stiggers knew they had
been drinking, and if they did whether they had permitted
them to work. Nor did he ask him if these employees were
employees of long standing or were pew employees, or if
they had been disciplined in some other, manner. Moore
testified on direct examination that he had knowledge that
employee Leo Carmack was discharged in 1949, employee
Mick McMullen was discharged in 1957, and another
employee by the name of Harvey was discharged "after
1947," because they came to 'work under the influence of
liquor.
General Counsel introduced the following testimony to
show that other employees had been absent from work,
but had not been discharged. His counsel asked a number
of witnesses if they knew of any employee who had been
fired for absenteeism other than Ricks. They answered
no.23 Counsel for General Counsel asked Lystra Ricks,
Ricks' brother, and an employee of Koppers Company
since 1924, if he had been absent without calling in, and he
answered that he had been time and time again. He then
testified, however, that he had not been absent at all
during the 2 years Piepho had been plant manager. Lystra
Ricks also testified that Mackie Carmickle, an employee
of 18 years, who rode in his automobile to work, was
absent "time and again" before and after his brother was
discharged, and was absent 2 days in 1 week prior to
Ricks' discharge. He did not disclose whether the latter
absence was during the 2 years Piepho was plant manager
or before. His testimony is silent as to whether Carmickle
called in. He testified that Carmickle did not say anything
to him, and he did not know whether he had an excuse for
his absences, or whether he had given any to Respondent
Company. He testified that on one occasion Lantz had
asked him if he had seen Carmickle, and when he
answered he had, he instructed him "to go by and tell him
don't come to work until Monday week." His testimony
does not disclose whether Carmickle was on layoff, or just
absent when Lantz gave him this instruction. Nor does it
disclose whether Carmickle was in good health or ill, or
whether he lacked or had some other excusable reason for
the absence.24
On direct examination, Moses Saffold, who began his
employment on March 12, 1964, testified for the General
Counsel that he was absent prior to and after the discharge
of Ricks, he did not call in prior to being absent, no one
said anything to him about being absent and not calling in,
and he answered no to the question whether he knew of
any employee other than Ricks who was discharged for
being absent without calling in.25 On cross-examination,
he testified he was absent four times from May to October
1964, one time in each of these 4 months. He also testified
that he did not have a telephone during the 4-month
period, and the nearest one was three to•four blocks away;
he was late when the bus was late, as it sometimes was;
the bus he had to take was the one leaving at 5:30 a.m.,
which brought him to the plant at 6:45 a.m., and the next
one was at 6:30 a.m., which would arrive at the plant after
the day shift began, and too late for him to go to work.
particular absences or by reason of the job he held, his testimony
to have any probative value would have to have been connected
with the testimony of an official of Respondent Company who
could provide this evidence As it is in the record, it merits no
weight, and I give it none
25 This is another question, in which it is assumed, contrary to
the evidence, that Ricks was discharged for being absent and not
calling in
KOPPERS COMPANY, INC. 525
Duncan testified he was absent three or four times in
1964 without calling in, and was absent in the year 1965
without calling in. On cross-examination , he testified he
was never absent more than once in a week. Raphael
Jackson who began his employment with Respondent
Company on April 12, 1922, testified he had been absent
without calling in, and no disciplinary action had been
taken against him for not calling in when absent. He was
told in October 1965 that he had to call in when he was
absent. On cross-examination, Jackson testified that he
had worked for Respondent in Delaware and New
Hampshire as well as in Kansas City. In regard to his
employment in Kansas City he was absent only 2 days in
1964, and absent only 1 day in 1965. He was sick during his
2-day absence in 1964. Jackson said he could not call in
when he did not intend to report for work as it was too
early to call, but that he sent a message . Jackson worked
the day shift which began at 7 a.m. Stiggers and Singleton
were asked by counsel for General Counsel if they knew of
any employee "other than Ricks" who had been
discharged for absenteeism. They answered no. He did not
ask them if they knew of any employees who had been
absent twice in a week without an excuse. Singleton,
Piepho, and Stiggers testified on cross-examination that
they could not recall an employee who had been absent
twice in 1 week without an excuse.
C. The Grievance
Ricks testified he went to the home of Singleton, the
president of Respondent Local, on September 3, 1964, and
asked him what steps he should take in the grievance
procedure. Singleton asked Ricks to see Navarette, the
chief steward. Ricks went to Navarette's home. Navarette
was not at home, and Ricks waited for him. According to
Ricks, when Navarette arrived home, Ricks showed him
the letter or statement he received from Piepho on
August 31, and said he would like to file a grievance.
Navarette told him he could do nothing unless Singleton
told him to do it, that he would talk to him, and try to
arrange a meeting for him with the grievance committee,
and let him kn6w through his brother Ricks.26 Ricks
testified he never heard from him. Navarette testified he
saw the letter or statement Ricks received from Piepho
and Ricks said he wanted his job back, and that he asked
Ricks to see one of the stewards. Singleton, Stiggers, and
Navarette, separately telephoned Anthony Poeta,
assistant regional director of region 55 of Respondent
District 50, on the evening of August 31, 1964, or the next
day, and informed him of the discharge.27 Singleton and
Stiggers informed Poeta of the reasons for Ricks'
discharge. They said that he had two unexcused absences
in 1 week, reported late, and then appeared on the job "as
being drunk." Poeta told Singleton to process the
grievance. Singleton discussed the discharge with
Stewards Adkins and Lystra Ricks, Chief Steward
Navarette and Stiggers, individually and jointly. Singleton
testified that their opinions differed as to the merits of the
discharge. He was anxious to have a meeting with the
representatives of Respondent Company, and have the
matter settled. Navarette also talked to Lantz and Piepho
about the discharge, and told Lystra Ricks "what the man
said." On September 9, 1964, about 3 p.m., Poeta,
Stiggers, Navarette, and Adkins had a conversation about
the discharge. 28 Stiggers was asked whether Ricks was
drunk on August 28. He told them he was not drunk but
had been drinking. Stiggers related to the others what had
occurred in his presence on August 28 (supra, section III,
B). He also stated to them what Piepho told him and
Singleton on August 31 regarding the discharge. Singleton,
Stiggers, and Navarette decided they would try to
persuade Piepho to return Ricks to his job. Poeta told
them that if the Company's position was that it fired Ricks
for drinking or coming to work after having taken some
drink, the chances were very slim that should the case go
to arbitration they would win it, as his information
substantiated the Company's position, and it would be a
waste of time and money to pursue a case he could not win
through arbitration. Poeta made the arrangements with
Piepho for the Committee to meet with him on
September 11 regarding the discharge.
Poeta, Singleton, Stiggers, and Navarette met with
Piepho on September 11 sometime in the afternoon.
Adkins, the fourth member of the group who met with
Piepho, was not present. When Singleton asked him to be
there he said he was going on vacation and had some
matters to attend to, and could not attend.29 Piepho was
asked to reemploy Ricks. Piepho told them he could not do
so. He said that Ricks violated the Company's rule against
drinking. He was asked to give the reasons for Ricks'
discharge, and he replied that within the week of the
discharge Ricks had been absent " in unauthorized manner
twice, tardy once, and there was a drinking problem
entwined through the absenteeism." The Committee
spokesmen and Poeta agreed that the discharge was
justified, and Poeta informed Piepho of their decision.
26 The procedure for lodging a complaint is to register it with a
steward , who brings it to the attention of the chief steward The
chief steward then discusses it with the other officers and the
grievance committee
27 The headquarters of region 55 in which Poeta and H W
Moore , the regional director , have offices , is in the Rialto
Building, Kansas City, Missouri The Board's Regional Office was
in the same building Poeta , who began his connection with
District 50 in 1952, had been with region 55 since 1956, and had
his first contact with Respondent Local in 1957 or early 1958 His
duties as assistant regional director include assisting the regional
director in servicing 17 locals, including Respondent Local, in
region 55 Region 55 is comprised of North and South Dakota,
Iowa, Nebraska , Oklahoma. Kansas, half of Missouri, and five
counties in Arkansas These duties include the "handling of
grievances , sitting in on grievance meetings, negotiation of
contracts , organizing new plants ," etc Poeta testified that during
the time he had been with District 50 he participated in 150 to 200
cases that had gone to arbitration Singleton telephoned him when
Ricks complained that he had been laid off, and Wilmur Red, an
employee of less seniority , had been retained Singleton had told
him that Ricks could not do the work that Reed was doing, and
had not worked 30 working days . Poets informed Singleton there
was no merit to the complaint as under the Contract Ricks could
not "bump" Reed unless he could do the work Reed was doing,
and that Ricks had no standing to process a grievance under the
Contract as he had less than 30 working days' employment He
was only a temporary employee When Poeta administered the
oath of membership in the Unions to Ricks in the first week of
August 1964, he gave him this same information
21 A union meeting was scheduled for September 9, but was not
held because of the absence of Singleton due-to illness Poeta
arrived at the plant about noon when the employees were having
lunch He sat and talked with a number of them during the lunch
period
29 Under the Contract, four members of Respondent Local
were paid for the time of a meeting between the Respondent
Local and Respondent Company As stated, supra, In 7, the four
of the Committee who met with management were Singleton,
Stiggers, Navarette,'and-Adkins. Lystra Ricks was not asked to
attend in place of Adkins . Stiggers testified that he was not one of
the group that met with Respondent Company
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Poeta asked the Committee to inform Lystra Ricks of their
decision so he could inform Ricks of it.
Stiggers testified that Navarette told Lystra about the
meeting, and asked him to inform Ricks. Lystra Ricks
testified that after the discharge the Committee tried to
get in touch with Ricks through him, but he did not know
where he was. He testified that Ricks left the
roominghouse where they were both living, and he did not
know where he was for several weeks after the discharge.
Poeta testified that in September and until the middle of
October 1964, he tried to reach Ricks through Singleton,
Stiggers, and Navarette, but was unsuccessful. He tried
unsuccessfully to locate Ricks in October 1964 in
connection with a hearing to be held on his complaint to
the President's Committee on Equal Employment
Opportunity.
Since Lystra Ricks was a member of the Committee,
although not one of the four that met with Respondent
Company, the four who met with Piepho on September 11
were charged with the responsibility of informing him,
Pryor, Adkins, and Ragland, the other members of the
Committee, of what transpired. Since there is a
presumption that the Committee acted according to
Respondent Local's rules, and particularly since Lystra
testified that the Committee attempted to reach his
brother through him, and he did not testify or complain
that he was not informed of the September 11 action, I find
that he was informed of it, and asked to communicate it to
his brother.
On September 11, 1964, Ricks mailed a letter to
Respondent District 50, and a copy to Singleton, in which
he informed District 50 he was making written protest of
his discharge on the ground that the reasons furnished him
in writing on August 31, 1964, were not verified by
Respondent Company's records as being attributable to
his negligence . He requested that the fourth step of the
grievance procedure in the Contract be invoked. The
fourth step is an attempt at settlement of the grievance
reduced to writing by the representatives of Respondent
District 50 and the representatives or executives of
Respondent Company. In support of this request, Ricks
stated in the letter that steps one , two, and three of the
procedure had been exhausted by the failure of the
Company and him to reach agreement on his
reemployment on August 31, and oral complaints by him
to Singleton and Navarette which received no attention
from them. 30
Region 55 of Respondent District 50 received Ricks'
letter on Saturday, September 12, 1964, and Singleton
received a copy on Monday, September 14, 1964.31 Poeta
attempted to locate Ricks by telephone on the following
Monday or Tuesday to tell him the matter in the letter had
been disposed of on September 11 but was unable to
locate him. He took no action on the letter, as he
considered the matter closed after the action taken on
September 11.
Ricks testified that he visited Poeta in his office on
September 11, 1964, and showed him his copy of the letter
he had mailed that day to District 50, and that Poeta took
notes from it. He also testified Poeta said that he would try
to get him a hearing, and then said he was too intelligent to
want to work for Respondent Company and asked him if
he could get a job in one of the clean pottery plants. Ricks
said he told Poeta that he would like such a job, but would
continue to process the grievance. Ricks also testified that
he talked to Poeta by telephone on or about October 9,
1964, and asked him if he had obtained a hearing for him.
According to Ricks, Poeta said the Committee refused to
give him a hearing. Ricks testified that he again visited
Poeta in his office on October 11, 1964, after he had visited
the Board's Regional Office where he intended to file a
charge. He said the Regional Office representative with
whom he talked asked him to obtain a written statement
from Poeta that the Unions refused to process a grievance,
and that he made this request to Poeta. Poeta, according
to Ricks, refused to give him a statement, and, said,
"Oh I see you want to play it dirty. I was going to get
you another job, but if you file with the Labor Board I'm
not going to get you another job." Ricks testified he said to
Poeta that he would not promise not to file a charge, but
would appreciate his getting him another job as he needed
it. Poeta denied he was visited by Ricks on September 11
or October 11, 1964, or talked to him by telephone on
October 9. He testified that the first time he saw or talked
to Ricks after he gave him the Union's oath of membership
in the first week of August 1964, was on December 21,
1964. He recalled receiving on the day after Ricks' visit a
copy of Ric(:s' unfair labor practice charge against the
Unions. This charge was filed on December 21, 1964.
Region 55 received a copy of it on December 22, 1964.
Poeta denied he ever discussed other employment with
Ricks. He testified he discussed this matter only with
Lystra Ricks when in December 1964 or January 1965,
Lystra came to him and asked him to help Ricks as he
could not give him financial support, and also meet his
own financial obligations. He said he told Lystra he would
try to get Ricks a job.
Poeta testified that he had a heated conversation with
Ricks in his office on December 21, 1964, in which Ricks
accused him of doing nothing about his letter of
September 11, and referred to the incident in the yard
office of Respondent Company on July 30, 1964, and
Poeta's advice to Singleton there was no merit to that
complaint, and also referred to the ruling of the Committee
against him on his discharge, and to the adverse decision
of the President's Committee on Equal Employment
Opportunity. Respondent Company was informed of this
latter decision on December 9, 1964, by the Department of
the Army. Ricks said he was going somewhere else to get
relief, and Poeta answered that he should see Director
Moore of region 55 if he was dissatisfied, and voice his
objections. He also said there were in the constitution
"reasons and means to appeal decisions made by me or
anyone in District 50."32
Ricks' testimony of his visits of September 11 and
October 11, 1964, and telephone call of October 9, 1964, is
uncorroborated. No evidence of the time that the alleged
conversation of September 11 was held was offered. Poeta
30 As stated (supra, sec. III, A, paragraph 3), the first step in the
grievance procedure is an effort by the aggrieved party and his
foreman or other representative of management to reach an
agreement ; the second step is an attempt at agreement by the
Committee and the foreman or other representative of
management, and step three is to reduce the grievance to writing
on the failure to settle it within 10 days, and an attempt by the
Committee and the management level of Respondent Company to
resolve the written grievance The meeting on September 11 was
step two of the grievance procedure, and the action taken at this
meeting by the Respondent Company and the Committee of
Respondent Local assisted by Poets was a resolution of the
grievance at the step-two level While the 10 days had expired, the
parties to the contract by their action on September 11 extended
the 10-day period to 11 days Parties to a contract may mutually
waive, extend, change, or abandon any of its provisions
31 It is undisputed that Respondent Company did not receive a
copy of the letter or receive any other form of notice of it
32 See supra, sec III , A, paragraph 3, for reference to procedure
for appealing action of a local to the executive board of District 50
KOPPERS COMPANY, INC. 527
was occupied at Respondent Company's plant from noon
until 3:30 p. m. Ricks' testimony includes no references by
Poeta to the meeting on September 11, 1964, at
Respondent Company's plant , although Poeta and the
Committee were trying to locate Ricks on September 11
and thereafter to let him know what transpired at the
meeting. If they talked on September 11 and October 9
and 11 as Ricks testified they did, there would have been
something said by Poeta about the September 11 meeting,
and something said in return by Ricks, and Poeta would
not have found it necessary to try to locate Ricks after the
letter was received by region 55. It is undisputed that the
meeting took place , and that the Respondent Company
and Respondent Unions decided at the meeting that Ricks'
grievance had no merit , and that his discharge was
justified , and that Ricks was to be informed of the
decision.
From an evaluation of the oral testimony of Ricks,
Poeta, and Lystra Ricks, related evidence , and the
demeanor testimony of Poeta, Ricks, and Lystra Ricks, I
credit the testimony of Poeta, and do not credit the
testimony of Ricks. I find that Ricks did not talk to Poeta
about a grievance until December 21, 1964, and made no
attempt to ascertain what action the Committee took on
his behalf although he had left his known address shortly
after his discharge , and no one , including his brother,
knew where to locate him for a period of several weeks. I
also credit Poeta's testimony that he never discussed with
Ricks the obtaining of employment for him in pottery
plants or elsewhere.
On January 23, 1965, Poeta gave Lystra Ricks a paper
on which were stated the name of Thomas Cook,
superintendent , and the address of Tierra Royal Pottery,
Incorporated , Kansas City, Missouri , to give to his brother.
He was to apply for a job to this official of Tierra Pottery.
He applied for a job the same day, and filled out an
application form. He obtained a job with Tierra Pottery
and began employment there on January 29, 1965. On
January 26 , 1965, he withdrew the unfair labor practice
charges against the Unions . The withdrawal was approved
by the Regional Director on January 27, 1965. About 30
days after he began employment with Tierra Pottery,
Ricks met Poeta at the Tierra Pottery plant . It has a
collective -bargaining contract with District 50 and one of
its locals. In a friendly conversation Poeta had with him
and Bernice Waters, the president of the local, Poeta said,
"here is a man that will get us all put in jail but if he has
any problems take good care of him and treat him nicely,
and if not let me know about it ." Ricks told Poeta later, in
a separate conversation he had with him, that he had
withdrawn the charges partly out of courtesy to him,
because he was nice enough to help him find a job. Poeta
replied , "Ricks, you know I'd do all I can for you on
account of your brother."33
Lystra Ricks testified that on or about December 28,
1964, after Poeta telephoned him at his rooming house
and was unable to locate him, he telephoned Poeta from
his lady friend 's, and Poeta asked him where his brother
was staying and he answered "down here on Benton," and
then Poeta said he had a job for Ricks at $2 .45 per hour if
he dropped the charges against the Unions. Lystra
testified that he immediately drove to where his brother
was staying , and told him what Poeta said , and his brother
replied "he no take up with no such trash as that ." Ricks
testified his brother said Poeta had a job at $2.54 per hour
at a plant that needed a man the following Monday
morning if he would drop the suit against the Union, and
that he said he would not drop the case against the Union,
but would like to have the job . Lystra testified he never
bothered to inform Poeta of his brother 's decision , but did
tell Singleton some time later . Ricks received an hourly
rate of $ 1.68 at the time he was discharged by Respondent
Company.
Poeta denied he attached the condition that Ricks
withdraw the unfair labor practice charges to his offer to
help Ricks to obtain a job after Lystra asked him for his
assistance . He did not deny, however , that he called
Lystra and told him that Ricks could have a job. He
testified that when he was asked by Lystra to help Ricks
he referred to contractors calling region 55 and asking if
they could refer workers , as District 50 conducted an
apprentice program in connection with its construction
locals. He said that in referring to this type of inquiry he
may have mentioned to Lystra a $2.90 rate paid on
construction work. He also testified that District 50 does
not operate a hiring hall or refer workers to employers.
Apparently, however, region 55 is contacted because of
the apprentice program , and Poeta would be in a position
to know when a job was available on a construction
project.
The offer alleged to have been made by Poeta on
December 28 appears to be in conflict with the assistance
Poeta gave Ricks in obtaining a job at Tierra Pottery.
There were no conditions attached . It also appears to be in
conflict with what Ricks said to Poeta and what Poeta said
to him when they met in late February 1965, at Tierra
Pottery. However, on evaluation of all the relevant
evidence , including the demeanor testimony , I credit
Lystra Ricks' testimony that Poeta called him on
December 28, 1964, and informed him that Ricks could
have a job at $2.54 per hour if he would drop the unfair
labor practice charges.
Analysis and Concluding Findings
I conclude and find that the preponderance of the
evidence of record considered as a whole does not support
the complaint against Respondent Company that it has
violated Section 8(a)(1) and (3) of the Act by the discharge
on August 31, 1964, of, and refusal to reinstate thereafter,
Charging Party Ricks.
General Counsel contends that Respondent Company
discharged Ricks because he attempted to process a
grievance on July 30, 1964 , in connection with his layoff on
July 29, 1964. He argues that Respondent Company's
discrimination against Ricks is shown by Plant Manager
Piepho's admissions at the hearing that he was irritated by
Ricks' conduct at the July 30, 1964, meeting on Ricks'
protest of his July 29 layoff, and considered him to have
been insubordinate and not a particularly good employee
because of this conduct; evidence that Piepho gave Ricks
in writing on August 31, the day of the discharge , reasons
for the discharge of "frequent absenteeism and tardiness"
and then switched to reasons of frequent absenteeism,
tardiness , and a drinking problem, when discussing Ricks'
grievance on September 11, 1964, with the Respondent
Local' s Committee ; and evidence that Respondent
Company prior to Ricks' discharge did not discharge
employees for drinking , being absent frequently, or for
unexcused absences.
It is undisputed that Respondent Company and
Respondent Unions have had amicable collective-
bargaining relations over a period of many years. There is
not a scintilla of evidence in the record that these amicable
33 This is Ricks' testimony
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining relations had been disrupted or
disturbed in any way at the time of the layoff on July 29,
1964, or before or when Ricks was discharged on
August 31, 1964. Pant Manager Piepho patiently explained
to Ricks in the July 30 meeting that his layoff was due to
the breakdown of the power crane, and was temporary; he
was not given the 3- to 5-day notice in the Contract for an
indefinite layoff as the breakdown could not have been
anticipated; the employee by the name of Reed who had 1
day less seniority than he had had been retained instead of
him because he did repair and maintenance work, and was
working on the repair of the crane, while Ricks had no
experience in repair and maintenance work, and other
employees laid off with him had more seniority than he
had, and one of them would be entitled to Reed's job in any
event if Reed had been laid off. Piepho became irritated at
Ricks when he continued to insist, in a heated manner,
that he was discriminatorily laid off because of lack of
notice and his seniority over Reed, after his reasonable
explanation showed Ricks that he had misinterpreted the
Contract. The irritation was not because of the processing
of the grievance, but because of Ricks' unreasonableness
This unreasonableness clearly amounted to
insubordination, and warranted the judgment of Piepho
that because of it Ricks was not a "particularly good
employee."
In the conversation Piepho had with Singleton after the
July 30 meeting, Piepho said he wanted to be included in
any future grievance meetings, and wanted them
conducted in an orderly manner. Piepho had not been
notified of the July 30 meeting and came upon it by
accident. Then Piepho or Lantz put Ricks back to work
the next day, Friday, July 31, because he had no standing
to process a grievance unless he worked 30 working days.
His working on Friday gave him the 30 days. The following
Monday, August 3, Lantz assigned Ricks to the day shift
as a forklift operator as a replacement for Adkins who had
gone on vacation. Ricks had disclosed at the July 30
meeting that he had experience as a forklift operator. After
Adkins returned, he was assigned to his previous job as
materials handler on the day shift in connection with the
operation of the power crane, and was assigned overtime
work on the night shift as a replacement for absentees
when he requested this extra work. On Wednesday,
August 19, 1964, he was returned to the night shift, and
when Lantz informed him of the transfer to this shift, he
told him he needed employees like him on that shift whom
he could trust to appear for work. When Ricks did not
report for work on Monday, August 24, and did not report
in, or give an excuse, nothing was said to him, and no
disciplinary action was taken, even though a replacement
was very likely not obtained as Lantz and Stiggers did not
know he was to be absent until the day-shift employees
had left. During the daytime on Friday, August 28, 1964,
Ricks was assigned to the job of forklift operator on the
day shift, effective Monday, August 31, 1964, because he
had requested or bid on this job.,
Then on Friday afternoon, August 28, between 4 and
5 p.m., Ricks appeared at the plant to work on the night
shift which began at 3:30 p.m. Night Supervisor Stiggers
knew from his appearance and from the odor from his
breath that he had been drinking, and although it was a
company rule to keep any employee from working who had
34 Keep an eye on him did not mean Lantz should see if he
could catch him doing something that could be cause for
discharge It obviously meant to watch him to see that he did not
work again in this condition
35 He'admitted at the hearing that he had been drinking that
been drinking, Stiggers put him to work in a gondola
freight car being unloaded where he believed he would be
out of sight of Foreman Lantz who was still at the plant.
Lantz saw him anyway in the freight car, and asked what
he was doing there. Stiggers told him he had placed Ricks
in the freight car so he would not see him because he had
been drinking. Lantz let him work on Stiggers' assurance
he was all right, and that he would keep an eye on him.
Lantz informed Piepho on Saturday morning, August 29,
that Ricks had appeared late for work the prior afternoon
and had been drinking. He also told him that he was the
employee who had made the fuss on July 30 about his
layoff on July 29. He asked Piepho what he should do, and
the latter replied that there was nothing to do, that it was
over, and to keep an eye on him.34 On Saturday morning,
neither Piepho nor Lantz rescinded the assignment made
to Ricks to begin work as a forklift operator on the day
shift on Monday, August 31, 1964.
Ricks did not report for work on the night shift on
Saturday, August 29, although he had been assigned to
this work. He did not call in or furnish any excuse.35
However, Lystra Ricks, his brother, did call in shortly
after 3 p.m. to report that Ricks would not be at work. The
call by Lystra enabled Lantz and Stiggers to obtain a
replacement. When Lantz, in Piepho's presence, asked
Lystra Ricks, as he alighted from his automobile in the
parking lot about 3:30 p.m., if Ricks was drunk, Lystra
admitted that he was. It was then that Piepho and Lantz
decided that Ricks should be discharged. The chronology
of events concerning Ricks' employment in the week
beginning August 24 and ending August 29, 1964, shows
clearly that he was discharged on August 31, 1964, for two
unexcused absences and one unexcused lateness in 1
week in which was entwined a drinking problem. The
favored treatment that Ricks received after he complained
of his layoff to Piepho in the grievance meeting on July 30,
1964, belies the claim that he was discharged because he
began processing a grievance on July 30. Piepho admitted
that in determining to discharge Ricks for his conduct
during the week from August 24 to 29, he was influenced
by his judgment that Ricks, because of his
unreasonableness and insubordination during the
grievance meeting on July 30, was not a "particularly good
employee." As previously stated, this judgment was
warranted. Piepho had the right to consider it.36
I credit Piepho's explanation that when Ricks requested
that he be furnished with the reasons for the discharge in
writing, he was reluctant to state in writing that one of the
reasons was Ricks' drinking problem, without thinking
further about it, and decided to state only the other
reasons , which standing alone justified the discharge. As
Piepho testified, he had many responsibilities as plant
manager when Ricks requested the reasons for the
discharge in the early morning of August 31, a short time
after his discharge. Piepho knew from Ricks' behavior on
July 30 that he would resort to technicalities, even though
arbitrary, to support a claim of discrimination, and
obviously wished to give more consideration to the touchy
matter of the drinking problem, and the way lie should
express it, before he furnished it in writing to Ricks as a
reason for the discharge. At the hearing, Piepho said in
retrospect that he wished he had included it in the written
reasons.
morning , and on August 28 He testified that he overslept on
August 28, and did not wake up until 5 30 p in , too late to report
for work
56 Jackanic's Reinforcing-Erectors, Inc , 158 NLRB 99
KOPPERS COMPANY, INC. 529
General Counsel's evidence shows that Respondent
Company did not discharge employee Willie Ross, a
forklift operator, in May or June 1964, when he was found
to be under the influence of liquor while he was operating
the forklift, and spilled a load of railroad ties. Piepho
removed him permanently from the job of forklift operator
and assigned him to another job where he could not
endanger life or property. But Ross had been an employee
of 20 years, and had acquired a vested interest in
employee benefits by reason of his long tenure of
employment. As Piepho testified, an executive must use
his best judgment in each particular case depending on the
circumstances. He admitted that at times the treatment
given older employees is different from that given to newer
employees. Ricks, who had been assigned to operate a
forklift the Friday preceding his discharge, was a new
employee of 2-3/4 months. Moreover, he was clearly not
the better type of employee as evidenced by his
unreasonableness and arbitrariness on July 30, 1964.
Certainly, the Act does not deny Piepho, as the plant
executive, the margin of discretion he exercised here,
especially since it in no way infringes on any rights that
Ricks or any other employee has under the Act.
When Piepho, in March 1965, sent Duncan, a tally clerk,
home with a warning when he reported for work under the
influence of liquor, and on the second infraction,
suspended him for 2 weeks, he exercised the same good
judgment that he exercised in the Ross case. Duncan was
an employee of 15 years. The employees under the
influence of liquor whom Foreman Lantz sent home
instead of discharging were employees of long years of
service. However, three employees were discharged by
Respondent Company for being under the influence of
liquor. Action taken in cases of this kind must not only
recognize the rights of employees under the Act, but
accord fair treatment to employees in the light of their
particular circumstances, and provide for the protection of
life and property in view of the hazardous nature of the
work performed by employees with jobs like Ricks'.
Piepho and Lantz exercised good judgment in these cases.
But assuming they did not exercise the best of judgment,
there would still be no violation as rights under the Act
were not denied by Respondent Company's conduct.
The weakness of General Counsel's evidence dealing
with absences and not calling in is apparent from my
findings regarding it in section III, B. There is no evidence
that Respondent Company had been confronted prior to
the conduct of Ricks in the week of August 24 to 29, 1964,
with a personnel problem involving two unexcused
absences and one unexcused tardiness by an employee in
1 week, or with the larger personnel problem of the
absences and the tardiness coupled with the employee
reporting for work after he had been drinking and his
absence from work because of drinking. I fail to see any
merit to the argument that Respondent Company in Ricks'
case varied from an established policy reflected by
General Counsel's evidence, that warrants the conclusion
it acted with an illegal motive.
I conclude and find that General Counsel has not
supported by a preponderance of the evidence on the
record considered as a whole the complaint, as amended,
against Respondent Unions insofar as it alleges that they
violated Section 8(b)(1)(A) and (2) of the Act by failing and
refusing to process a grievance regarding Ricks' discharge
on and after September 11, 1964, and insofar as it alleges
that Respondent District 50 coerced and restrained
employees in violation of Section 8(b)(1)(A) and (2) of the
Act by interfering with Ricks' right to file unfair labor
practice charges, and initiate Board proceedings, by
offering him a job at Tierra Pottery, Inc., at a rate higher
than the rate he received as an employee of Respondent
Company if he refrained from filing unfair labor practice
charges against the Unions, and if he would withdraw the
charges that he filed. I find, however, that District 50 did
interfere with Ricks' right to the use of the Board's
processes in violation of Section 8(b)(1)(A) of the Act by
Poeta's offer to Ricks on December 28, 1964, through his
brother Lystra, to obtain a job for him at $2.54 an hour in
the construction field if he would withdraw the charges he
filed against Respondent Unions on December 21, 1964.
This illegal conduct was not specifically alleged in the
complaint, but was litigated by District 50 and the General
Counsel. However, for reasons stated below, I shall
recommend that no remedy be provided for this technical
violation of the Act by Respondent District 50, and that the
complaint against Respondent Unions and against
Respondent District 50, separately, be dismissed in its
entirety.
Respondent Local complied with Ricks' request of
August 31 or September 3, 1964, that Respondent Local
process a grievance under the Contract on his behalf in
connection with his discharge on August 31, 1964. I agree
with General Counsel that the requirement of the first step
of the grievance procedure had been met by Ricks
discussion of his discharge with Lantz, and the receipt of
the statement of reasons for the discharge from Piepho.
The members of the Committee, including Lystra Ricks,
the brother of Ricks, considered the position of
Respondent Company conveyed by Piepho to Stiggers and
Singleton on August 31, 1964, and by Lantz to Navarette
shortly thereafter. The evidence clearly shows that Ricks'
drinking and his reporting on the job under the influence
of liquor were discussed, as well as his other infractions of
Respondent Company's employment rules. Stiggers, who
had personal knowledge of Ricks' conduct and of Piepho's
position on it, informed the Committee of this knowledge.
On Sptember 9, 1964, three of the Committee, Stiggers,
Navarette, and Adkins, and Poeta of region 55 of
District 50, who assists Respondent Local, discussed the
grievance. Stiggers again gave them his personal
knowledge of what Ricks had done, and what Piepho had
said to him about the discharge. I have credited Stiggers'
testimony that they discussed Ricks' drinking, and
Piepho's position on it. The Committee decided to ask
Piepho of Respondent Company to give Ricks his job
back. Poeta informed the Committee that if Respondent
Company's position was that Ricks was discharged for
drinking or coming to work after he had been drinking, and
his information substantiated this position, the chances
were very slim that they could win the case if it went to
arbitration, and it would be a waste of time and money to
pursue a case he could not win through arbitration.
On September 11, 1964, Singleton, Stiggers, Navarette,
and Poeta met with Piepho on Ricks' oral grievance to
Singleton. The meeting was arranged by Poeta after he
met with the Respondent Local on September 9. Adkins,
the other spokesman for the Committee, was not present.
He was asked to attend by Singleton, but could not attend.
A minimum of three may act as spokesmen under
District 50's constitution. Lystra Ricks, although a member
of the Committee, was not asked as he was not a
Committee spokesman. Piepho was asked by the
Committee to give Ricks his job back, but Piepho declined
because Ricks had violated Respondent Company's rule
against drinking. When asked for the reasons for the
discharge, Piepho said that in the week prior to the
discharge Ricks had been absent twice and tardy once
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without authorization, and there was a drinking problem
entwined through the absenteeism. The Committee and
Poeta, its advisor, decided that the discharge was justified,
and so informed Piepho.
The evidence clearly shows that the absences and the
tardinesses were unauthorized and unexcused, and that a
drinking problem was entwined through the absenteeism
and the tardiness. It also shows that Piepho and Lantz, in
discharging Ricks, considered all these problems, and
gave Ricks as much leeway as they, in their judgment as
responsible plant supervisors, believed they could give
him. It further shows that the Committee representatives,
as spokesmen for the Respondent Local, considered with
sincerity, responsibility, and good judgment, the facts of
the discharge and Ricks' grievance, from September 1
through September 9 within the Union itself, and then
jointly with Respondent Company. They knew the facts,
particularly since Stiggers and Singleton had personal
knowledge of them. Stiggers was the supervisor who had
on-the-spot personal knowledge of Ricks' infractions of
good employment conduct, and Singleton was conversant
with what had been done in connection with the
processing of the grievance. The Respondent Local was
concerned about Ricks' drinking as the safety of the union
members as well as the safety of the other employees is
placed in jeopardy when Ricks or any employee reports for
the hazardous yard work after he has been drinking.
Navarette, who operated the power crane, testified that in
one paycheck envelope every month for the 24 years he
was employed, he received a notice from Respondent
Company that employees were not to work when under the
influence of alcohol. I fail to see the merit in argument that
officers of a union or members of a union grievance
committee have to be cavalier about, or ignore, the risk to
employees from the handling of the hazardous jobs to
which Ricks had been assigned, when the employees
handling these jobs report for work after they have bean
drinking, regardless of the amount consumed. The other
employees who had been under the influence of liquor,
that had been given some form of discipline other than
discharge, were employees who merited the other
discipline because of their particular circumstances.
Respondent Local was not bound by the Act, the
constitution of District 50, or any other procedure, in its
consideration of a grievance to conduct formal
proceedings, including the taking of evidence in
accordance with prescribed rules, and the holding of a
hearing at which the grievant is entitled to be present.37
Respondent Local through its Committee acted with
dispatch, honesty, seriousness, thoroughness, good
judgment, and without discrimination, in the informal way
it gave independent consideration to the grievance. It
acted with the same propriety in its joint consideration of
the grievance with Respondent Company. The grievance
was properly disposed of at the second step of the
grievance procedure, as stated supra, footnote 30.
Respondent Local had no obligation to take any further
action, except to inform Ricks of the joint action it and
Respondent Company had taken. It made every effort to
inform Ricks through Lystra Ricks, his brother.38
Ricks' attempt to get the,grievance before Respondent
District 50 at the step four level of the grievance procedure
obviously has no merit, since the grievance had been
resolved at the second step before he sent the letter to
region 55 of District 50. In any event, Ricks could not have
avoided the third step of the grievance procedure by his
unwarranted position in his September 11 letter that steps
two and three had been exhausted. District 50 by its
region 55 had no obligation to reply to Ricks'
September 11 letter since it could not be drawn into the
grievance procedure unless the grievance remained
unresolved, and the prior steps which applied to the level
of its locals had been exhausted. As stated above, the
grievance had been resolved at the step-two level, but
assuming it had not been, the step-three level remained to
be followed.39
There is credited evidence that on December 28, 1964,
Poeta offered Ricks, through Lystra Ricks his brother, a
job at $2.54 per hour, if he withdrew the charges he filed
with the Board on December 21, 1964, and Ricks turned
down this offer, and on January 23, 1965, Poeta sent Ricks,
by his brother Lystra, the name and address of the
superintendent of Tierra Pottery, Inc., whom he was to
contact for a job. He contacted him the same day, and
obtained a job. There is no evidence that the condition of
withdrawing the unfair labor practice charges or any other
condition was attached to the assistance Poeta gave to
Ricks in his obtaining a job with Tierra Pottery. There is
no evidence of record of the rate he received at the outset
of, or during, his employment at Tierra Pottery. Therefore,
General Counsel has not supported the allegation in the
complaint, as amended, that Respondent District 50
violated the Act by inducing and/or seeking to induce
Ricks to refrain from or withdraw the charges by
promising him employment at Tierra Pottery at a higher
rate.
I have credited Poeta's testimony that he may have
referred to an hourly rate paid in the construction industry
in a conversation he had with Lystra Ricks about jobs he
could assist his brother Ricks in obtaining. I find that
Poeta offered Ricks a job in the construction industry on
December 28, 1964, at $2.54 per hour, and conclude that
this offer violated Section 8(b)(1)(A) of the Act.40 I do not
find a violation of Section 8(b)(2) since it could affect at
most a determination to reinstate or not to reinstate Ricks
after he was discharged on August 31, 1964. However,
since his discharge was justified, and there was not any
obligation on the part of Respondent Company to reinstate
him, there could not be any illegal causation within the
meaning of Section 8(b)(2).
But the violation of Section 8(b)(1)(A) is a technical
violation only, and the public interest would be hurt rather
than helped by a remedy. On Tuesday, January 26, 1965,
Ricks requested the withdrawal of his December 21, 1964,
charges that Respondent Unions refused to process a
grievance on his behalf on and after September 11, 1964.
31 Ricks had the right, under Sec 9(a) of the Act to present his
grievance directly to Respondent Company He exercised this
statutory right as well as his right under the first step of the
grievance procedure when he met with Lantz and received
reasons for the discharge in writing on August 31, 1964
38 Theo Hamm Brewing Co, 151 NLRB 397, and Coca-Cola
Bottling Corporation, 153 NLRB 1425 While it is a union's duty
"to exercise fairly the power enforced upon it in behalf of those
for whom it acts, without hostile discrimination against them"
(Steele v Louisville & Nashville Railroad Co , et al , 323 U S 192,
203, and Ford Motor Company v Huffman, 345 U S 330, 337), "A
union 's right to screen grievances and to press only those it
concludes should be pressed is a valuable right, and on balance, it
benefits all employees" (Ostrofsky v United Steelworkers of
America, 171 F Supp 782, 790 (D Md)), quoted in Black-Clawson
Company, Inc v International Association of Machinists, Lodge
355, 313 F 2d 179 (CA 2)
39 Theo Hamm Brewing Co , supra, fn 38
90 Union de Trabatadores de Muelles y Ramas Anexas de Puerto
Rico (Bordas & Co.), 125 NLRB 1335
KOPPERS COMPANY, INC.
The Regional Director approved the withdrawal on
January 27, 1965. Either he believed that the receipt of a
job by Ricks at Tierra Pottery with the assistance of Poeta
unaccompanied by the condition that the charges be
withdrawn, was an outside settlement which effectuated
the purposes of the Act in spite of the December 28 job
offer conditioned on the withdrawal of the charges, or
Ricks did not disclose to him that Poeta made him a
conditional job offer on December 28, 1964, which he
refused, and on January 23, 1965, Poeta had obtained a job
for him at Tierra Pottery, without the condition that he
withdraw the charges that he had attached to the job offer
he made on December 28, 1964, but he believed, for
reasons he has not disclosed, that the approval of the
withdrawal request was justified in any event.
It will be recalled that in late February 1965, Ricks told
Poeta he withdrew the charges partly out of courtesy to
him, and Poeta replied that he would do anything for him
because of his high regard for Lystra Ricks, his brother.
Earlier in the same day, Poeta told Bernice Waters,
president of Local 15112, which represented the
employees at the Tierra Pottery plant, to take good care of
Ricks. The whole matter was apparently settled. Then on
May 28, 1965, Ricks requested a reinstatement of the
December 21, 1964, charges, and the Regional Director
approved the request and reinstated them. There is no
explanation for the request for reinstatement. However,
the reason is disclosed by the amended charge filed on
May 28, 1965. To the December 21, 1964, charges, was
added the charge that Respondent Unions violated the Act
by refusing on and after May 11, 1965, to process a
grievance on behalf of Ricks in connection with his
employment at Tierra Pottery. Ricks had a personnel
problem at Tierra Pottery and succeeded in renewing the
December 21 charge, which on May 28, 1965, covered a
dead issue, to give weight to his case involving Tierra
Pottery. Here is an anomalous situation.
The anomalous situation is that Respondent Local
which is Local 12366 does not represent the employees of
Tierra Pottery, and was charged in error with respect to
Ricks' grievance arising out of his employment at Tierra
Pottery. The Tierra Pottery employees are represented by
Local 15112. District 50 was improperly charged in the
May 28, 1965, charge as it was charged insofar as it
assisted Respondent Local in connection with Ricks'
problem at Tierra Pottery. Since Respondent Local had
nothing to do with any matter at Tierra Pottery, neither did
District 50 as an aid to Respondent Local.
Then Ricks apparently learned that Respondent Local,
and District 50 through the aid it gives Respondent Local,
could not be held accountable for anything that occurred
at Tierra Pottery. Therefore, on June 4, 1965, he amended
the May 28, 1965, amended charge to delete the matter
involving his problem at Tierra Pottery. This left the
December 21, 1964, charges that covered a matter
concerning which a withdrawal was approved on
January 27, 1965, and which apparently would not have
been reactivated without the misplaced allegation of
misconduct at the Tierra Pottery plant. The complaint as
amended against the Respondent-Unions ended up with
allegations that they refused to process a grievance on and
after September 11, 1964, involving Ricks' employment at
Respondent Company's plant , and District 50 offered
Ricks a job on January 23, 1965, at Tierra Pottery at a rate
higher than the one received from Respondent Company,
if he withdrew the charges he filed on December 21.
General Counsel has not proved either of these allegations.
41 N L.R B. v Silver Bakery, Inc., etc , et al , 351 F 2d 37
(C A 1)
531
The subject matter of the allegation in the complaint
regarding Tierra Pottery was not included in any of the
charges. Poeta's offer of a job to Ricks on December 28,
1964, with the condition he withdraw the December 21
charges, was not alleged in the complaint, and was not
included in any of the charges. It was disclosed by the
evidence taken at the hearing. However, it was clearly
encompassed by Ricks' withdrawal of the charge on
January 26, 1965, and its approval on January 27, 1965,
following Ricks obtaining a job at Tierra Pottery with
Poeta's assistance, and without the condition he withdraw
the charges. This was in effect an outside settlement
approved by the Regional Director which clearly
effectuated the purposes of the Act. Therefore, nothing is
left to be remedied.
There remains Respondent Unions' motion to dismiss
the allegation in the complaint relating to the refusal on
and after September 11, 1964, to process the grievance
regarding Ricks' discharge on August 31, 1964, on the
ground that the December 21, 1964, charges could not be
reinstated on May 28, 1965, and that the May 28, 1965,
amended charge was a new charge, which could initiate
proceedings involving only conduct that did not occur
prior to November 28, 1964. For the reasons stated in
connection with the other issues, I believe there is merit to
the motion .41 However, it is not necessary to rule on it
since I have found that General Counsel has not sustained
his complaint against Respondent Unions or Respondent
District 50 separately.
For the above reasons, I shall recommend that the
complaint, as amended, against Respondent Company,
and the complaint, as amended, against Respondent Local
and Respondent District 50 jointly, and against
Respondent District 50 separately, be dismissed in their
entirety.
CONCLUSIONS OF LAW
1. Respondent Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
Respondent Local and Respondent District 50 are labor
organizations within the meaning of Section 2(5) of the Act.
2. Respondent Company has not engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act as alleged in the complaint as amended.
3. Respondent Local and Respondent District 50 have
not engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) of the Act, as alleged in the
complaint, as amended.
4. Respondent District 50 technically violated Section
8(b)(1)(A) of the Act by offering Charging Party Ricks a job
on December 28, 1964, if he withdrew the unfair labor
practice charges he filed against Respondent Local and
Respondent District 50 on December 21, 1964, an issue
litigated at the hearing although not alleged in the
complaint, but a remedy for this technical violation should
not be given as it would not effectuate the purposes of the
Act.
5. The complaints and all matters against Respondents
should be dismissed in their entirety.
RECOMMENDED ORDER
It is recommended that the Board issue an order
dismissing the complaints and all matters in their entirety
against Respondent Koppers Company, Inc., Forest
Products Division, and Respondents District 50, United
Mine Workers of America and its Local No. 12366.
295-269 0-69-35