Laborers' Local 1191, Laborers International Union Of North America, Afl-Cio (S J Groves & Sons Co.)

National Labor Relations Board - Board Decisions

Feb 10, 1989

292 N.L.R.B. 1022 (N.L.R.B. 1989)

1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Laborers' Local 1191, Laborers International Union
of North America, AFL-CIO (S J Groves &
Sons Company ) and Charles P Owczarzak
Case 7-CB-7006
February 10, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On September 20, 1988, Administrative Law
Judge Walter J Alprin issued the attached deci
Sion The General Counsel filed exceptions and a
supporting brief and the Respondent filed a cross
exception, a supporting bnef, and an answering
brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
i The General Counsel has excepted to some of the judge s credibility
findings The Board s established policy is not to overrule an administra
five law judge s credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products 91 NLRB 544 ( 1950) enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re
versing the findings
Joseph P Canfield Esq for the General Counsel
Christopher P Legghio Esq (Miller Cohen Martens &
Ice), of Southfield, Michigan for the Respondent
DECISION
STATEMENT OF THE CASE
WALTER J ALPRIN, Administrative Law Judge On a
charge filed November 3, 1986,' General Counsel issued
a complaint on February 12, 1987, alleging that Labor
ers Local 1191, Laborers' International Union of North
America, AFL-CIO (Respondent or the Union) engaged
in unfair labor practices within the meaning of Sections
8(b)(1)(A) and 2(6) and (7) of the National Labor Rela
Lions Act (the Act) by failing and refusing to timely
process a grievance by its gross negligence in processing
the grievance in a perfunctory and arbitrary manner
Hearing was held at Detroit, Michigan, on September 8,
1987 Counsel for both parties presented oral closing
statements, and counsel for Respondent also filed a bnef
i All dates are in 1986 unless otherwise indicated
On the entire record of the case and from my obser
vation of the demeanor of the witnesses I make the fol
lowing
FINDINGS OF FACT
Respondent is a labor organization within the meaning
of the Act, and is exclusive bargaining agent of all labor
er employees and leadmen employed by S J Groves &
Sons Company (the Employer) At all pertinent times the
Employer has engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act
The Employer was at all times herein engaged in con
struction of a bridge at Zilwaukie Michigan, in regard to
which it entered into a Project Agreement that involved
craft representatives, including Respondent Article IV
of the agreement, Management Rights, provides in
part as follows
The employer shall retain full and exclusive author
ity for the management of its operations may
direct the work force, at its sole prerogative includ
ing hiring, selection of foremen, promotion, transfer,
layoff or discharge of its employees
The employer shall be the judge as to the satisfac
tory performance of work by an employee and may
terminate the employment of any employee whose
work or attendance is unsatisfactory
Article XIV, Grievances provides in part
In the event of any dispute arising out of the appli
cation or interpretations of this Agreement, exclu
sive of jurisdiction on work, the same shall be set
tled by means of the grievance procedure herein
after set forth No grievance shall be recognized unless
in writing and called to the attention of the Employer
by the Union or the attention of the Union by the
Employer within five (5) working days after the event
on which grievance is forwarded or occurred [Empha
sis added ]
Charles P Owczarzak (the Charging Party) is a
member of the Union and has been employed in various
laborer capacities on the Zilwaukee Bridge project by
various employers He had been employed by the Em
ployer since about 1983 primarily engaged in laborer
work pouring and compacting cement Compacting is
the process of working wet cement to avoid honey
combing,' which is the occurrence of gas bubbles within
the wet concrete, leaving unwanted spaces in the cured
concrete which threatens its integrity
On September 9 Owczarzak was discharged by the
Employer because of unsatisfactory work specifically
because of unsatisfactory pours resulting in honeycombs,
occurring September 4 or 5, or both In anger, Owczar
zak stated that he no longer wanted to work for the Em
ployer The other three members of the team involved in
these pours walked off the job in protest and pursuant to
the terms of the Project Agreement also were dis
charged
Owczarzak testified that there was no union steward at
the jobsite to whom to appeal Owczarzak knew that
292 NLRB No 113
LABORERS LOCAL 1191 (S J GROVES & SONS) 1023
Billy Mann who was at the jobsite at the time, had been
a steward, but testified that at the time Mann was a fore
man, and not a steward John Mills, the union field rep
resentative for the project, testified that at the time Mann
was not a foreman, was in fact the steward, was working
the same shift as Owczarzak and was available to help
The foreman of the crew, Terry Hawley, who was
one of those discharged, told Owczarzak that he was in
the good graces of Michael Hillyer, the Employer s
project manager , and would speak to him regarding get
ting their jobs back The evening of the following day,
Wednesday, September 10, Hawley telephoned Owczar
zak and reported that he had been unsuccessful, though
another member of the team, Ron, a laborer apprentice,
had been reemployed
On Thursday, September 11, Owczarzak attempted to
telephone Elijah Washington, the Union s business agent,
in Detroit He did not attempt to contact John Mills, the
union field representative responsible for the Zilwaukee
Bridge project, because of personal animosity he be
lieved existed between them When told that Washington
would not be available until Monday, September 15,
Owczarzak told the person answering the telephone that
he had been fired That person told Owczarzak he would
have to speak with Washington Washington testified
that six or seven other union representatives covered the
office in his absence, but Owczarzak made no attempt to
speak to anyone else after identifying the problem
Owczarzak s testimony was that he was unaware of
the Project Agreement, and believed, as per the employ
ee handbook he had received upon joining the Union,
that he had 30 days in which to submit a grievance On
Monday, September 15, he telephoned Washington
Owczarzak s description of the ensuing conversation was
that Washington was not helpful that he hemmed and
hawed and would give no definite answers Washington s
testimony was that Owczarzak had told him he had
screwed up some jobs but kept insisting and attempt
ing to manipulate Washington to commit himself to get
his job back Washington told Owczarzak that the party
to deal through was Field Representative Mills, and that
Washington would call Mills When asked why he took
so long before calling Owczarzak responded that he
would not have attempted to grieve the discharge had he
not learned of the reemployment of Ron, the apprentice
Washington telephoned Mills the same day, September
15 and told him to drop everything else and to see the
employer at Zilwaukee Bridge to try to get Owczarzak s
job back Mills called him back later the same day and
reported that the Employer refused to rehire Owczarzak
Washington told Mills to call Owczarzak, advise him of
this, and to go back to the Employer the following day
Mills did not call Owczarzak, but testified that the fol
lowing day, September 16, he returned to the Employer,
spoke at great length with Project Manager Hillyer and
that when Hillyer persisted in his refusal to rehire Owc
zarzak asked him then to at least discharge Ron so that
neither of them would be reemployed, which Hillyer
also refused
Hillyer, on the other hand, recalls only that Mills vis
ited the worksite on Monday, September 15 which was
his usual visiting day, and that during a general conver
cation had asked that Owczarzak be put back to work,
which he refused Hillyer did not recall any other meet
ing, the following day or otherwise, regarding Owczar
zak
Mills telephoned Washington on the day of the second
visit to which he testified, Tuesday, 16 September, to
report lack of success Washington directed Mills to tele
phone Owczarzak and advise him
Mills telephoned Owczarzak that day and reported he
had been unable to get his job back He also advised that
it was the last day for filing a written grievance, and that
Owczarzak should prepare one immediately and mail it
that day to the Union in Detroit, to Washington s atten
tion, which Owczarzak then did
There is no record of when the grievance arrived in
Detroit, but on September 22 Washington sent it to
Francis Hovey, the Union s Michigan District Council's
business manager , at Lansing , Michigan , "requesting that
you submit the grievance of Mr Owczarzak under the
S J Groves Construction Agreement ' Washington tes
tified that he made this request knowing that the griev
ance was filed late and believing it to be indefensible, in
the hope that a request by the District Council would be
given greater deference by the Employer On September
26, on behalf of the District Council, Hovey sent Hillyer
a letter by certified mail and with return receipt request
ed, to officially notify you a written grievance has been
filed against you by Charles P Owczarzak and Laborers
Local Union 1191
By letter dated September 29, Hillyer responded,
citing the time provisions of article XIV of the Project
Agreement, the September 9 date of discharge, and the
September 29 receipt of the grievance The letter con
cluded `Please explain, as I see no grounds for continu
ation of this matter as it falls outside of the limits spelled
out in the Project Agreement' On September 30, there
was a telephone conversation between Hovey and Hil
lyer Hillyer prepared a memo to file regarding the con
versation, as follows
Telephone conversation with Mr Hovey about
Charles Owczarzak Hovey said he was at meetings
the week of the layoff or discharge He was sick the
following week also Owczarzak didn t file a com
plaint until 9/16/86 with Local 1191
We didn t recieve [sic] any official document until
9/29/86 John Mills had said the union wanted him
back to work in casual conversation No official
meeting
My position to Hovey although he was out of town
to meeting and then sick Was that the complaint
came to [sic] late as spelled out in the Project
Agreement and that a meeting as he requested at
this time would be to [sic] late
An average of 25 to 30 laborers have been employed
on the project over the last 4 to 5 years No written
grievances have been filed by laborers though disputes
have been handled and 3 months prior to the Charging
Party s discharge another laborer was discharged and
then reinstated after conference Among all the crafts
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
covered by the agreement, only one or two written
grievances have been filed with the Employer
Respondent offered hearsay evidence by union officials
as to the Owczarzak s prior work record which was ac
cepted, over objection, subject to and specifically upon
representation by counsel for Respondent that admissable
evidence thereof would be forthcoming No such evi
dence was presented and hearsay regarding Owczarzak s
work record as offered by union officials is ordered
stricken
Discussion
Counsel for General Counsel argues that the language
of the agreement required a written grievance to be
called to Employers attention within the 5 day period,
while counsel for Respondent argues contra, that while
notice must be given within that time the writing need
not specifically be submitted within the period This is a
nonissue,2 as the determinative question here is, in the
words of Vaca v Sipes, 368 U S 171 (1967), and its nu
merous progeny, whether the union s action was arbi
trary, discriminatory or in bad faith (Id at 190 )
Notwithstanding that Owczarzak originally voluntarily
stated he no longer wished to work for the employer and
only later changed his mind, that the complaint was not
immediately made to the shop steward on the jobsite,
and that Owczarzak did not make his oral complaint to
the Union until next to the last day, the fact is that the
Union had sufficient time to properly process the matter
Washington and Mills testified that Mills was directed
to drop whatever he was doing and go to the jobsite,
which he did speaking to the project manager in what
Mills described as a conversation in length The tests
mony of the project manager however, was that Mills
appeared on the day he usually visited the jobsite and
just asked if he-if we could get Owczarzak back to
work The project managers notes of a later telephone
conversation with the representative of the District
Council confirmed that he thought the conversation with
Mills had been no more than casual
Mills also testified that at Washington s direction he
returned to the jobsite the following day to reiterate the
appeal, but that the project manager refused to reconsid
er, or to consider molifying Owczarzak by reversing his
decision to rehire the apprentice on the team The
project manager however, had no recollection of such a
second meeting
The credibility of Mills testimony as to the special of
forts he made prior to his directing Owczarzak to mail
the grievance to the Union rather than delivering it im
mediately to the Employer is highly relevant though as
later developed, not determinative I do not accept Mills
testimony He is an individual with a personal interest in
E If reversed on this point I would enter a finding that the clear terms
of the agreement required both that the grievance must be in writing and
that it i e the written grievance must be called to the employer s atten
tion within the time period
the outcome of this proceeding His testimony has been
controverted by that of the project engineer who has no
personal interest in the outcome of this proceeding I
find as a result and through personal observation of the
witnesses that Mills made no special effort but merely
visited the jobsite in his usual manner and at his usual
time, that he no more than casually asked that Owczar
zak be rehired, and that he did not return the following
day with any further request
The Board has consistently held that simple negli
Bence is not such purposeful conduct as to constitute
violation of the Act Cf Painters Local 1310 (Reliance
Electric), 270 NLRB 506 507 (1984) Though a union
may not ignore a meritorious grievance, or process a
meritorious grievance in a perfunctory manner, it is
granted broad discretion in deciding which grievances to
pursue and the manner in which to handle them Service
Employees Local 3036 (Linden Maintenance) 280 NLRB
995 (1986)
The facts here show that though the union representa
tive did not make as strong an appeal as he would have
us believe and did not make a second attempt the fol
lowing day as he would have us believe, he did in fact
raise the grievance with the Employer His direction to
Owczarzak to mail the grievance to the Union rather
than delivering it that day to the Employer, or other ac
tions or inactions, have not been shown to have been ar
bitrary discriminatory, or in bad faith I find Mills error
in this regard constituted no more than simple negli
gence and not actionable as a violation of the Act
There is insufficient evidence to establish that he pur
posely misled Owczarzak, or deliberately gave bad
advice Auto Workers Local 167 (General Motors Corp),
286 NLRB 1167 (1987) The remaining defenses of Re
spondent Union therefore need not be considered
CONCLUSIONS OF LAW
1 Laborers Local 1191 Laborers International Union
of North America AFL-CIO is a labor organization
within the meaning of the Act
2 S J Groves & Sons Company is engaged in com
merce within the meaning of the Act
3 The General Counsel has not established by a pre
ponderance of the evidence that the Respondent violated
the Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed3
ORDER
The complaint is dismissed in its entirety
3 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses