Local 8-398, The Oil, Chemical And Atomic Workers International Union, Afl-Cio (Gilbert Spruance Co.)

National Labor Relations Board - Board Decisions

Dec 8, 1986

282 N.L.R.B. 374 (N.L.R.B. 1986)

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 8-398, the Oil, Chemical and Atomic Workers
International Union, AFL-CIO (Gilbert
Spruance Company) and Raymond Banas. Case
4-CB-5144
8 December 1986
DECISION AND ORDER
By MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 26 September 1986 Administrative Law
Judge Donald R. Holley issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed a brief
in opposition to the General Counsel's exceptions.
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.
FINDINGS OF FACT
1. JURISDICTION
The Union is the exclusive collective-bargaining agent
of certain employees employed by the Gilbert Spruance
Company (Gilbert Spruance or the Company), a Penn-
sylvania corporation with a facility located at Richmond
and Tioga Streets, Philadelphia, Pennsylvania, where it is
engaged in the manufacture of paint, varnish, lacquer,
and stain. During the 12-month period preceding issu-
ance of the complaint, Gilbert Spruance sold and
shipped, from its above-described business operation to
points located outside the State of Pennsylvania, prod-
ucts valued in excess of $50,000. It is admitted, and I
find, that Gilbert Spruance is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Margaret M. McGovern, Esq., for the General Counsel.
Arnold F. Laikin, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. On
a charge filed by Raymond. Banas on 12 November
1985,1 the Regional Director for Region 4 of the Nation-
al Labor Relations Board issued a complaint on 30 April
1986, which alleged, in substance, that Local 8-398, the
Oil, Chemical and Atomic Workers International Union,
AFL-CIO (Respondent or the Union) violated Section
8(b)(1)(A) of the National Labor Relations Act (the Act)
by processing a grievance concerning the discharge of
Raymond Banas in an arbitrary and perfunctory manner
and by misrepresenting its actions regarding the process-
ing of Banas' grievance. By timely answer, Respondent
denied it had engaged in the unfair labor practice alleged
in the complaint.
The case was heard in Philadelphia, Pennsylvania, on
16 July 1986. All parties appeared and were afforded full
opportunity to participate. On the entire record, includ-
ing posthearing briefs filed by the parties and from my
observation of the demeanor of the witnesses who ap-
peared to give testimony, I make the following
1 All dates herein are 1985 unless otherwise indicated.
The alleged discriminatee in this case, Raymond
Banas, was, until 10 May 1985, employed in the bargain-
ing unit represented by the Union.
On 10 May, employees Raymond Banas (Banas) and
John Myhasuk were terminated by William Dengler, Gil-
bert Spruance's vice president in charge of operations.
The assigned reason for the discharges was fighting on
the job. Both employees filed grievances. William Kitch-
ens, a member of the Gilbert Spruance shop committee,
assisted them in writing up their grievances.
Respondent's contract with Gilbert Spruance contains
a four-step grievance procedure.2 The first step provides
for presentation of the dispute to the aggrieved employ-
ee's foreman; the second step provides for discussion
with the plant superintendent; the third step provides for
a meeting between the plant manager or his designee and
the shop committee, which may be accompanied by an
International Union representative; and, the fourth step is
submission to arbitration. With respect to submission to
arbitration, the contract provides, in pertinent part:
(d) In any case where satisfactory settlement has
not been achieved, such dispute or grievance may
be submitted to the American Arbitration Associa-
tion by either party provided that the matter is sub-
mitted to arbitration not longer than two (2) months
after completion of the steps outlined in Section
8.1(c) above.
The record reveals that the Company, through
Dengler, denied the Banas and Myhasuk grievances
when they were filed and a third-step meeting was
scheduled for 23 May. Attending that meeting for the
Company were Dengler and another Gilbert, Spruance
2 See G C. Exh. 2.
282 NLRB No. 61
OIL WORKERS LOCAL 8-398 (SPRUANCE CO.)
vice president, Rick Green. Attending for the Union
were the members of the Gilbert Spruance shop commit-
tee and International Representative Donald Burnett.3
During ' the third-step meeting, Dengler again denied
the grievance indicating that the Company had a rule
that prohibited fighting on the job. He testified he in-
formed the union participants he had had Myhasuk and
Banas in his office on several occasions because they
could not get along with each other and with their
fellow employees. He claims he told them he had trans-
ferred Banas from a mill job to a yard job at the request
of his fellow employees and he had warned both Banas
and Myhasuk at the time that they had to work together
and get along and, if they became involved in a fist fight,
he would fire them both.4 After Dengler denied the
grievance ',and gave his reasons for the terminations, Bur-
nett asked if 'he would bring the two back to work, bring
them back with a suspension, bring them back with no
backpay, or bring them back on probation. Dengler re-
fused the options advanced by Burnett. At the conclu-
sion of the meeting , Burnett asked if Dengler would
agree to not fight the discharged employees' claims for
unemployment. Dengler agreed not to fight the unem-
ployment claims.5
Burnett testified he reported to Banas after the third-
step meeting that the Company had refused to take him
back, but had agreed not to fight his claim for unemploy-
went. c Additionally, he told Banas the Union would
have to decide whether it would take the grievance to
arbitration. Burnett did, not consult with the leadership of
the Union after the third-step meeting. He indicated he
felt the members of the shop committee would let others
know what had occurred there.
Respondent' conducts its regular membership meetings
the third Tuesday of each month. Its president, Shelton
Lorick, indicated executive board meetings are held im-
mediately before the regular meetings, and the executive
board is the body that decides whether grievances will
be taken to arbitration. He further indicated that before
the executive board can vote to take a grievance to arbi-
tration, the members of the bargaining unit of any given
employer must, by secret ballot, vote to take a grievance
involving unit employees to arbitration.
At some point prior to 18 June, the employees in the
Gilbert Spruance bargaining unit, by secret ballot, voted
19 to 4 in favor of taking the l4yhasuk and Banas griev-
a It is uncontested , and I find, that the following union officials are,
and have been at , all times material , agents of the Union within the mean-
ing of Sec. 2(13) of the Act: Burnett; Shelton Lorick, president of the
Local; Edward Barowski , recording secretary ; Tony Malopolski, chair-
man of the shop committee ; and, William Kitchens , shop committeeman
and executive board member.
4 Kitchens and other members of the shop committee were present
when Banes and Myhasuk were warned . Kitchens testified a civil war
was then occurring in the paint department between Myhasuk and Banes
and he and other employees were in the middle . Kitchens indicated he
was one of the employees whose complaints caused Dengler to warn the
employees and transfer , Banas to the yard in February 1985.
5 Banes testified his claim for unemployment was originally denied, but
it was granted when he appealed and no Gilbert Spruance official ap-
peared to contest it.
6 Banes denied ' Burnett told him the Company had agreed not to fight
his unemployment claim . Burnett 'was the more impressive witness, and I
credit his testimony where it conflicts with that given by Banas.
375
ances to arbitration. Thereafter, the Union's executive
board met before the regular membership meeting on 18
June and its members voted to take the Banas grievance
to arbitration. Lorick testified no such decision was made
with respect to the Myhasuk grievance because that
member approached him prior to the executive board
meeting to tell him he had found other employment, was
getting unemployment, and did not want his case arbi-
trated.' At the conclusion of the 18 June executive board
meeting, Lorick asked Tony Malopolski, the chief stew-
ard at Gilbert Spruance, for the ballots that had been
cast by the Gilbert Spruance employees. Malopolski indi-
cated he had forgotten to bring them and Lorick in-
structed him to be sure he got them to him.8
On 11 July, Respondent's executive committee met.
The minutes of that meeting, Which appear in the record
as General Counsel Exhibit 4, reveal that Tony Malo-
polski "did not show with votes count." After the meet-
ing, Lorick asked Barowski to inform Dengler that they
were going to take Ray Banes', case to arbitration. Bar-
owski testified he gave Dengler the message the follow-
ing day, 12 July. Dengler expressed surprise when he
was told the Banas grievance would be arbitrated by re-
marking he could not believe they would go to arbitra-
tion after he agreed not to contest Banas' unemployment
claims.
Banas testified he prepared and mailed to Lorick
around 17 July a complete account of what had hap-
pened on 10 May.
Lorick testified he called the plant and attempted to
talk to Malopolski on 29 July. He claimed Malopolski
was unavailable, so he spoke with Barowski and told him
they just had 2 days left on the Banas case and he still
did not have the vote (ballots). Although Barowski had
already told Dengler the Union intended to arbitrate the
case, Lorick contends he told Barowski on 29 July to tell
the Company they were taking the Banes case to arbitra-
tion.9
Banas testified he conversed in person and by tele-
phone with Kitchens, Barowski, and Malopolski at vari-
ous times after filing his grievance. On each occasion,
they told him the case was to be arbitrated. He asked
Malopolski as late as 1-1/2 or 2 weeks before 12 Novem-
ber (date charge was filed) about the status of his case,
and Malopolski told him it was coming along and he felt
he would win it.
Lorick testified the ballots cast by the Gilbert
Spruance unit employees when they were voting wheth-
er to take both the Myhasuk and Banas grievances to ar7
7 Lorick exhibited confusion during his testimony. The first page of
G.C. Exh. 5 appears to benotes taken during the 18 June executive board
meeting. Those notes reveal the body voted that "both men should be
brought back to work because there have been past fights witnessed by
Company men and were overlooked ." The probability is that Myhasuk
withdrew his grievance after the 18 June executive board meeting.
8 Lorick claimed during his testimony,that he told Malopolski he was
to cause the unit employees to conduct another secret-ballot vote on
whether to take the Banes grievance toy arbitration He claimed such
action was required by the Union 's bylaws. As indicated, infra , the em-
ployees did not participate in a second vote.
8 Lorick subsequently indicated the date of the call was 2 days before
the deadline for submitting the grievance to arbitration.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bitration were finally delivered to him on 15 August. 1 °
On 16 August, he formally submitted the Banas griev-
ance to arbitration by writing the American Arbitration
Association.
On 28 August, Gilbert Spruance sent a letter to the
American Arbitration Association . The text is as follows
(G.C. Exh. 3):
Dear Mr. Egger:
We are in receipt of your letter dated August 26,
1985 concerning the case noted above.
We enclose a copy of Article VIII of our Collec-
tive Bargaining Agreement for the period of August
12, 1983 through August 16, 1986 which states that
"the matter is submitted to arbitration not longer
than two (2) months after completion of the steps
outlined in Section 8. 1(c) above."
The Grievant was dismissed May 10 , 1985. First
Grievance Meeting with Union Committee and
Management was held May 14, 1985 . Final Meeting
with Donald G. Burnett OCAW International Rep-
resentative, Grievants and Management was held
May 23, 1985.
Our records indicate that July 23 , 1985 would be
the expiration date of the two (2) months after com-
pletion of the steps outlined in Section 8 . 1(c) of the
Collective Bargaining Agreement.
Based upon these facts, we respectfully submit that
this matter is beyond the time frame outlined in
Section 8 (d) of the Collective Bargaining Agree-
ment and no arbitration should be required.
Sincerely
/s/
Richard T. Green
Executive Vice President
After Burnett received his copy of the above -quoted
letter, he claims he telephoned Gilbert Spruance 's attor-
ney and sought to get him to agree to arbitrate the Banas
grievance even though the submission was untimely. He
testified the attorney refused his request , indicating the
Company would be willing to submit the question of
timeliness of the submission to the arbitrator . Burnett
then contacted Lorick, explained the situation , and indi-
cated he agreed the grievance was not timely submitted
in accordance with the terms of the contract. At that
point, Burnett claims he told Lorick he did not feel they
could have prevailed on the merits in arbitration because
Dengler had indicated during the third-step meeting that
the Company had a rule against fighting on the job and
Banas and Myhasuk had been expressly warned that if
their arguments led to a fist fight, both would be fired.
Burnett recommended that the grievance be withdrawn
and Lorick agreed to withdraw it. Lorick did not advise
Burnett during their discussion that Gilbert Spruance
had been given timely notice on 12 July that the Union
10 The ballots produced were those cast prior to 18 June. The Banas
grievance was never considered individually by the bargaining unit em-
ployees
intended to arbitrate the Banas case. At some unstated
time, the grievance was withdrawn.
Banas remained unaware during September and, Octo-
ber that the Union was no longer processing his griev-
ance. On 11 November, a maintenance man in the Gil-
bert Spruance shop told him he had heard a rumor that
the Company would not arbitrate because the matter had
not been timely submitted . Banas telephoned Lorick and
learned the rumor was true . He requested a copy of the
Company's letter, which claimed the submission was un-
timely and Lorick told him one was in the mail to him.
He never received the letter.
Analysis and Conclusions
A labor union owes a duty of fair representation to all
the employees it represents . Vaca v. Sipes, 386 US.'171
(1967). A union breaches the duty when its conduct
toward a member of the bargaining unit is arbitrary, dis-
criminatory, or in bad faith . Id. at 190 . Although a union
may not ignore a meritorious grievance or process it in a
perfunctory fashion, a union is afforded broad discretion
in deciding which grievances to pursue and the manner
in which to handle them . Associated Transport, 209
NLRB 292 (1974). Mere negligence is insufficient to, es-
tablish a breach of the duty of fair representation . Plumb-
ers Local 195 (Stone & Webster), 240 NLRB 504, 508
(1979).
When, as here, a union undertakes to process a griev-
ance but decides to abandon it short of arbitration, a
finding of violation turns not on'the merit of the griev-
ance, 'but rather on whether the union 's disposition of the
grievance was perfunctory or motivated by ill will or
other invidious considerations. Glass Bottle Blowers Local
106 (Owens-Illinois), 240 NLRB 324 (1979); Service Em-
ployees Local 3036 (Linden Maintenance), 280 NLRB 995
(1986).
The General Counsel does not contend in this case
that the Union was motivated to cease its efforts to arli'i-
trate the Banas grievance by ill will or other invidious
considerations . Consequently, her burden was to show
that the Union's actions were perfunctory. Recognizing
her burden, the General Counsel concisely sets forth her
position at page 8 of her brief, stating:
The critical facts in Linden and in the instant case
are that a union made a determination to process a
grievance to arbitration but inexplicably failed to
follow through on this determination , while falsely
reassuring the grievant that arbitration was forth-
coming.
In support of her contention, she relies on Service Em-
ployees Local 3036, supra, and Security Personnel of Hospi-
tals & Health Related Facilities (Church Charity Founda-
tion of Long Island), 267 NLRB 974 (1983). In"both
cases , the Board found the unions provided perfunctory
representation because they abandoned employees' griev-
ances without giving any reason for such action.
Respondent contends the record reveals it was unable
to arbitrate the Banas grievance because Local President
Lorick misinterpreted the submission provision of the
contract and that caused the subsequent filing of the
I
OIL WORKERS LOCAL 8-398 (SPRUANCE CO.)
grievance with the American Arbitration Association to
be untimely. In support of its position, it relies principal-
ly on the Board's decision in Truck Drivers Local 692
(Great Western Unifreight System), 209 NLRB 446 (1974),
and the court's decision in Either v Postal Service, 590
F.2d 733 (8th Cir. 1979). In Local 692, the Board granted
the union's Motion for Summary Judgment in which the
complaint, as amplified by a response to a bill of particu-
lars, merely charged the union with "negligence in fail-
ing to file the grievance in a reasonable and timely fash-
ion ." thus causing the employee's grievance to be
time-barred. There, the Board refused to equate "negli-
gence" with irrelevant, invidious, or unfair consider-
ations. In Either, the court refused to find perfunctory
representation when a union steward misinterpreted a
contractual provision that defined the method and time
for filing a grievance, thereby defeating an employee's
contractual right to grieve the employer's announced de-
cision to terminate his employment.
In the final analysis, the Union prevails in this case if I
credit Lorick's "contract misinterpretation" testimony,
and the General Counsel prevails if I refuse to credit that
testimony and find, instead, that the grievance was not
timely submitted because the Gilbert Spruance steward
failed, for some unexplained reason, to get employee bal-,
lots to Lorick prior to 23 July. I am not disposed to
ignore that Lorick's testimony reveals the Union took af-
firmatiye action in an attempt to cause arbitration of
Banas' grievance for the reasons set forth below.
The uncontroverted, indeed corroborated, testimony
leaves no doubt that Lorick caused the Company to be
placed on notice of the fact that the Union intended to
arbitrate the Banas grievance about 12 July.'1 Lorick
claims he gave the notice after the Gilbert Spruance
steward failed to get employee ballots to him because he
had followed such a course of action at other employers
and such action had been considered by other employers
to constitute submission of a grievance to arbitration.
The General Counsel contends Lorick's claim is unbe-
lievable because the submission language in the instant
contract is so clear that no reasonable person could con-
clude a' grievance could be submitted to arbitration by
simply giving the Company notice the Union intended to
arbitrate a grievance, I do not agree. Here, the provision
controlling submission, which is quoted, supra, states
either party can'submit a grievance to the American Ar-
bitration Association' provided the grievance is submitted
to arbitration within a stated time period. The contract
does not specifically state what action will constitute
"submitted to arbitration." Although the parties were ap-
parently agreed at the time of the hearing that a griev-
ance could only be submitted to arbitration by submitting
it to the Association, no evidence was offered that would
reveal that the parties to the agreement agreed on such
11 Lorick, Barowskl, and Dengler each testified such notice was given
in early July.
377
an interpretation of the clause under -consideration when
they engaged in bargaining , which led to the' adoption of
the clause. In my view, the submission clause is some-
what ambiguous. Although Lorick appeared to be con-
fused at times during his' appearance as a witness, I credit
his assertion that he thought he could submit the Banas
grievance to arbitration by giving Gilbert Spruance
timely notice that the grievance was going to arbitration.
As the testimony was being received in this case, it ap-
peared to me that the Union engaged in perfunctory con-
duct by failing, once the Company claimed the submis-
sion was untimely, to argue the misinterpretation of con-
tract matter. In retrospect, I can understand why the
matter was not raised as it would be perfectly natural for
a local union president, like 'Lorick, to simply accept the
opinion of an International union representative that his
union had clearly failed to submit the grievance to arbi-
tration in accordance with the contract. As Lorick was
negligent when he failed to raise the matter, his negli-
gence cannot, in my view, be equated with irrelevant, in-
vidious, unfair, or arbitrary conduct.
In sum, I find that Respondent earnestly sought to
cause arbitration of the Banas grievance,, but failed to ac-
complish its - object because the Company and Lorick's
advisor, Burnett, ultimately agreed the grievance was not
timely submitted to arbitration in accordance with the
contract.
Remaining is the General Counsel's contention that the
Union violated Section 8(b)(1)(A) by misinforming Banas
of the status of his grievance. Absent evidence that the
union officials who discussed the status of the grievance
were aware at the time of the discussions that the griev-
ance had been withdrawn, I fmd the allegation to be
without merit.
CONCLUSIONS OF LAW
1. The Gilbert Spruance Company is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel has failed to prove by a,pre-
ponderance of the evidence that the Union committed
the unfair labor practices alleged in the complaint.
On these findings of fact and conclusions of law and
on, the entire record, I issue the following recommend-
ed12
ORDER,
The complaint is dismissed in its entirety.
12 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.