Local No. 453, Molders'

National Labor Relations Board - Board Decisions

Feb 1, 1974

208 N.L.R.B. 869 (N.L.R.B. 1974)

LOCAL NO. 453, MOLDERS'
Local No. 453, International Molders' and Allied
Workers' Union , AFL-CIO (Josam Manufacturing
Co.) and Wilbur L. Adkins. Case 25-CB-1726
February 1, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 21, 1973, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions i of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Local No. 453. International
Molders' and Allied Workers' Union, AFL-CIO, its
officers, agents, and representatives, shall take the
action set forth in the said recommended Order
except that the attached notice is substituted for the
Administrative Law Judge's notice.
1 We hereby correct the following inadvertent errors in the Administra-
tive Law Judge 's Decision In the eighth paragraph of sec 11, "8(a)(1)(A)"
should read "8 (b)(l)(A)"; in the penultimate paragraph of sec. II.
"contract" should read "Act "
2 We find ment in the General Counsel's exception that the word
"abruptly" should be deleted from the notice and we have modified the
notice accordingly
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT stop the processing of the
grievance of any of our members because said
member has filed an unfair labor practice charge
with the National Labor Relations Board.
869
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights guaranteed by the National Labor
Relations Act.
LOCAL No. 453.
INTERNATIONAL
MOLDERS' AND ALLIED
WORKERS' UNION,
AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 614 ISTA Center, 150 W. Market
Street, Indianapolis, Indiana 46204, Telephone
317-633-8921.
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This case
came on for hearing before me on September 18, 1973,1 in
Michigan City, Indiana. The charge was filed by an
individual, Wilbur D. Adkins, hereinafter referred to as the
Charging Party or Adkins; Local No. 453, International
Molders' and Allied Workers' Union, AFL-CIO, here-
inafter variously referred to as the Union, or Local 453, or
the Respondent. The charge was filed on June 8 and the
complaint issued on July 30.
The Employer, Josam Manufacturing Co., is a corpora-
tion duly organized under, and existing by virtue of, the
laws of the State of Indiana. The Employer has maintained
its principal office and place of business at Michigan City,
Indiana, herein called the facility and is, and has been at
all times material herein, engaged at said facility in the
manufacture, sale, and distribution of plumbing and
drainage products. Respondent denied the commission of
the unfair labor practices alleged but admits allegations of
the complaint sufficient to support the assertion of
jurisdiction under current standards of the Board (inflow
of over $50,000 in the past calendar year). The Union's
answer admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
Unopposed motions were made by both the General
Counsel and Respondent regarding certain typographical
changes. The motions are hereby granted.
I All dates referred to in this report concern events that took place in
1973 unless otherwise stated.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, including my
observation of the demeanor of the witnesses, and the
briefs submitted by the parties I make the following:
FINDINGS OF FACT
L BACKGROUND
The Respondent is the collective-bargaining representa-
tive of employees of the Josam Manufacturing Co., and
has acted in this capacity for a number of years. There is
currently in effect a labor agreement between the parties,
effective May 1, 1971, which covers the period up through
and including April 30, 1974. The contract designates the
Respondent as the exclusive representative of all foundry
and maintenance employees of the Company. The contract
between the parties covers a unit of maintenance employ-
ees including the Charging Party Wilbur Adkins who was a
member of the unit until he became a foreman on July 25.
11. THE ALLEGED UNFAIR LABOR PRACTICES
On March 19, Adkins and other employees filed a
written grievance requesting pay for their lunch period. It
is the contention of the General Counsel that the grievance
in question was arbitrarily withdrawn and not processed
due to the fact that Adkins had filed charges against Henry
Hert who was then president of Local 453.
There is little dispute between the parties about the basic
facts in this case. Adkins' complaint made by him to his
immediate foreman sets forth that employees on the first
shift were not afforded paid lunch periods whereas
employees on the second and third shifts were. Adkins felt
that this was discriminatory. The evidence indicates that
on March 19 Adkins and several other members of the
maintenance department prepared a grievance form
complaining of this alleged discriminatory treatment and
submitted it to Frank Jones, his shop steward and member
of the grievance committee of the Local. Jones reduced the
grievance to writing and presented it to a management
official, R. Magnus who is the superintendent of the
Employer's plant.
On June 8 the Charging Party filed a charge with the
NLRB alleging that Henry Hert, the then president of
Local 453, had violated his rights under the National
Labor Relations Act, Section 8(b)(1)(A) in that he
arbitrarily failed and refused to process and handle the
grievance filed by Adkins because Adkins had filed
charges against him with the NLRB.
The record shows that on March 19, 1973, Adkins and
several other members of the maintenance department
prepared a grievance form complaining of alleged discrimi-
natory treatment and submitted it to Frank Jones, his shop
steward and a member of the grievance committee of the
Local. While the record is silent as to what response was
made by Superintendent Magnus, it is clear that his answer
was in the negative.
That same day, March 19, all members of the committee
as well as Mr. Paul Parker, the Union's international
representative, engaged in a meeting with management
officials on other grievances, not including the one filed by
Adkins. In fact the evidence shows that no one except
Adkins and Jones were aware that a complaint had been
filed by Adkins with manag°ment before this meeting.
After the major business of the grievance committee had
been completed, Adkins brought out his complaint and
called attention to the committee to this fact whereupon
they recessed the meeting, considered the matter as a body,
and concluded that inasmuch as there was no provision of
the collective-bargaining agreement which specifically
required management to give a paid lunch period to the
first-shift employees, decided that the complaint was
without merit and did not further discuss it when they
resumed their discussions with the Employer on other
scheduled grievances.
On the following day, March 20, Frank Jones withdrew
the written complaint on a grievance form. Later that day
Adkins protested to Hert that his grievance had been
withdrawn and accused Hert of taking this action. Hert
explained that Jones not Hert had done so that morning
after the grievance committee's decision of the previous
day. He further testified that until the matter was brought
to his attention by Jones on the morning of March 20 he
had not known such a complaint had been filed by Adkins
or anyone else.
Hert admitted that although he felt the complaint was
without merit he would try another approach consisting of
an effort to persuade management officials to change their
policy so as to grant a lunch period to the first-shift
employees. He informed the membership at a May meeting
that he would attempt to do what he could to remedy the
complaint and thereafter met once with Mr. Guy Robin-
son, plant general foreman, twice with Mr. Magnus, and
once with Ken Hampsher, the Company's director of
industrial relations. Each of the efforts to adjust the
complaint was unsuccessful because the management
refused to take any action on the complaint. Subsequently
Hert arranged a meeting between himself and Mr. Radian,
vice president of the Josam Company, to discuss the issue.
Before the meeting took place Adkins filed the instant
charge with the Board and on that basis Hert cancelled the
meeting with Radian and has had no further discussions
with management on this issue.
The General Counsel takes the position that Hert failed
to meet with Radian because Adkins filed the charge and
in refusing to do so he violated Section 8(a)(1)(A) of the
Act. Respondent states in his brief:
The law is abundantly clear that the Union owes the
duty of full and fair representation to each and every
member of the bargaining unit, whether they be
members of the Union or not Vaca v. Sipes, 386 U.S.
171. However, it is equally clear that a union has the
right to screen grievances, to separate the wheat from
the chaff so that only those complaints which have
merit are presented and made the subject of discussions
between the parties.
Respondent then cites the case of Ostrofskv v. United
Steelworkers, 43 LRRM 2745, 2751.
The grievance procedure can be an effective method of
preserving peaceful industrial relations only so long as
both the Union and the Company act in good faith.
LOCAL NO. 453, MOLDERS'
The Employer expects and demands that the Union
"screen" grievances, and the Union must do so if it
wants the grievance procedure preserved and future
grievances fairly considered by the Employer.
In support of this position the Respondent cites Coca Cola
Bottling Corporation, 59 LRRM 1661.
It is therefore urged by the Respondent that the court in
Ostrofsky recognized that not every complaint of a member
must be pursued by the Union as a formal grievance
through the steps of the grievance procedure but that the
Union has the "right to exercise its discretion in refusing to
process a grievance" and that this right has been confirmed
by the Supreme Court. It is therefore contended by the
Respondent that as long as the Union fairly considers the
complaint of its members as read against the provisions of
the contract, and acts in good faith even though erroneous-
ly, it cannot be held to have breached its statutory duty
under the Act.
It is further urged by Respondent that Adkins was well
aware of the mechanism of the grievance procedure
provisions of the agreement since he had formerly been
chairman of the grievance committee but he nevertheless
did not present his complaint to the committee for their
consideration. Instead he merely informed committeeman
Jones who reduced it to writing and submitted it directly to
Superintendent Magnus thus bypassing the committee
whose right and duty it was to screen all grievances so that
only those deemed meritorious would be processed further.
Respondent further points out that although the grievance
committee did not have an opportunity to consider it prior
to the March 19 meeting they nevertheless did consider
and discuss it that day and concluded that it should not be
further processed. There is no provision in the contract
which requires the Employer to give paid lunch periods to
employees on the first shift. Thus it is contended that the
Union had discharged its duty under law, had screened
Adkins' complaint and refused to process it. The grievance
was therefore a nullity and the Local's duty to Adkins had
been fully discharged absent any charge of had faith and
no such allegations have ever been made by either Adkins
or the Board. Instead President Hert did undertake to use
his personal relationship with management officials, his
personal prestige and that of his office to further attempt to
secure satisfaction for Adkins. It is also true that the
grievance form was withdrawn March 20 by Jones.
The General Counsel points out that in the midst of the
March 19 to June 8 period a regular membership meeting
was held by Respondent on May 23. Adkins was present
and asked Hert how much progress he was making on the
lunch period question. Hert replied he was still working on
it and Adkins then accused him of withdrawing the March
19 grievance. At this point Frank Jones rose and stated
that he was the man who had withdrawn the grievance.
The May 23 meeting was chaired by Hert, who told the
members how he was handling the lunch period grievance
and received their total agreement with and support of his
course of action. The General Counsel then quotes from
the record as follows:
I explairied to the membership, the whole
membership, the avenue 1 was taking, the whole, entire
871
membership knew what I was doing , every man who
was at the Union meeting, including Mr. Parker, the
committee people ; and they all agreed that this would
be the right way to handle this particular grievance, or
bitch or complaint.
The General Counsel concludes in his brief,
Accordingly it is clear from the record that Hert's
course of conduct in making personal contacts with
Magnus and Hampsher , his appointment to meet with
Radian as well as any other informal steps he might
take in regard to Adkins grievance , were approved,
authorized and ratified by the Respondent at the
regular membership meeting on May 23 with no
opposition voiced thereto.
The General Counsel then concludes that Respondent
never in fact dropped the grievance but merely elected to
pursue it in a manner calculated by the Respondent to be
the most likely to succeed in securing the remedies sought
by the grievants.
With respect to the question of whether or not Hert was
acting as an agent of the Union , the General Counsel
concludes that Hert 's actions are binding on the Respon-
dent . He was described as having been a full participant in
grievance proceedings as evidenced by his active participa-
tion in the March 19 grievance meeting as a member of the
union team and by virtue of the contract itself which
provides that third-step grievance meetings are between
"Union representatives" and the industrial relations
director, as distinguished from the "Shop Committee"
referred to in step two of the grievance procedure. It is
further argued by the General Counsel that even if Hert, as
Respondent's president , was not normally a party to the
handling of grievances, he was clearly designated by the
Respondent as its agent to pursue Adkins' grievance. In
support of this agency contention the General Counsel
then cites the following:
. both the law and the facts require a finding that
Hert's actions are binding on Respondent . He is a full
participant in grievance proceedings as evidenced by
his active participation in the March 19 grievance
meeting as a member of the union team and by virtue
of the contract itself which provides that grievance
meetings are between "union representatives" and the
industrial relations director , as distinguished from the
shop committee referred to in step 2 of the procedure.
Even if Hert , is Respondent 's President , was not
normally a party to the handling of grievances he was
clearly designated by the Respondent as its agent to
pursue Adkins' grievance. The Board earlier elucidated
the principal of agency applicable in this, in the
following clear and unambiguous terms:
. . . the principal's consent technically called
authorization or ratification, may be manifested by
conduct , sometimes even passive acquiescence as well
as by words. Authority to act as agents in a given
manner will be implied whenever the conduct of the
principals is such as to show that he actually intended
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to confer that authority. International Longshoremen's
and Warehousemen's Union, CIO (Sunset Line Twine
Company), 79 NLRB 1487, 1508.
Thus, Hert laid his plan before the membership in
complete detail at the May 23 meeting and received
their complete and instantaneous acquiescence in an
authorization and ratification of his course of action in
pursuing Adkins' grievance. The facts, therefore, are on
all fours with the circumstances the Board has declared
to warrant a fording of agency. Hert was clearly acting
as Respondent's agent in his entire course of meetings
and conversations with management representatives
about the lunch period complaint.
It is clear that the only issue in this case is whether or not
the Respondent, by its agent, Hert, violated Section
8(b)(1)(A) of the Act by cancelling a meeting with
management on Adkins' grievance and thereafter refusing
to further process the grievance all because Adkins filed a
charge against the Respondent with the National Labor
Relations Board.
It is not denied that all action concerning the grievance
filed by Adkins came to an abrupt halt when Respondent
learned of the charge filed against it with the NLRB. In the
view of the General Counsel at the point when the Union
ceased its efforts with respect to Adkins' complaint
because of the filing of the charge against the Union,
Respondent was guilty of the violation of Section
8(b)(1)(A). I agree with the General Counsel and so find.
The Respondent defends on two grounds: (1) that the
grievance was not timely filed because it was not presented
during the time limits set forth in the contract; and (2) that
Hert was not in fact an agent of the Union when, together
with Jones, the written grievance was withdrawn by the
Union. The failure to file a grievance within the time limits
established in the contract is not fatal being merely
procedural and not substantive. Further there is testimony
in the record that during the life of the contract matters
which had previously come up were treated in an informal
manner with no insistence by the Union of strict step-by-
step compliance with the procedure set forth in the
contract. Further there is no doubt in my mind that Hert
was acting in the guise of an agent of the Union and in its
capacity a president of the Local all of which is manifested
in his handling of this matter. It was taken up before the
grievance committee of the Union and then informally
with certain representatives of management. Suddenly, the
Union displayed an instant disinclination to pursue the
matter further upon learning that an unfair labor practice
charge had been filed against it by Adkins.
While it is true that the Supreme Court has recognized
that in the interest of effectively administering a contract's
grievance-arbitration machinery a union must be allowed
a considerable range of discretion in screening out, settling,
or abandoning, short of arbitration, those grievances which
the union in good faith believes do not justify this costly
and time consuming final step. Vaca v. Sipes. Accordingly,
the Supreme Court has held that an individual grievant has
no absolute right to have his grievance taken to arbitration.
No inference of unfair representation may, therefore, be
drawn simply from a bargaining agent's failure or refusal
to press a grievance case through the ultimate stage of a
contract's grievance-arbitration proceedings, or, for that
matter, through any intermediate stage . And this is so even
though it appears that the Union may have acted
negligently or exercised poor judgment in its handling of a
grievance. Bazarte v . United Transportation Union, 429 F.2d
868, 872 (C.A. 3). "A breach of the statutory duty of unfair
representation," the Supreme Court has made clear,
"occurs only when a union's conduct towards a member of
the collective bargaining unit is arbitrary, discriminatory,
or in bad faith." Applying that test to the facts established
by the record in this proceeding, I think it is clear that the
General Counsel has made out a case of unfair representa-
tion. I therefore find that the Union violated Section
8(b)(1)(A) of the contract.
A secondary issue came up in this case and it concerns
the problem of whether or not the instant case should be
deferred to the contract grievance procedure under the
policy enunciated in Collyer Insulated Wire, A Gulf and
Western Systems Co., 192 NLRB 837. I raised this point
during the hearing not in any definitive way but because it
superficially appeared to me that this case might conceiva-
bly fall in the ambit of the Collyer case. However a careful
reading of the transcript and the contract at issue
convinces me that the maintenance of free access to the
Board's processees, and prohibiting interference therewith,
is a duty reserved to the Board, Local 138, International
Union of Operating Engineers (Charles S. Skura) 148 NLRB
679, and is not to be delegated to the parties or exclusively
subject to collective bargaining . In conclusion it seems
clear to me that the issue raised by the mstant matter is not
deferrable and the rationale of deferring to arbitration is
not applicable to the facts in the matter at bar.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with the operations of the
Company, set forth in section I, above , have a close,
intimate and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is
engaging in unfair labor practices in violation of Section
8(b)(1)(A) of the Act, it shall be recommended that it cease
and desist therefrom and take certain affirmative action
designated to effectuate the policies of the Act.
Upon the foregoing findings of fact and on the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of the, Act.
2. Respondent is a labor organization within the
meaning of the Act.
3. By declining to process the grievance immediately
after it was learned that the grievant had filed an unfair
LOCAL NO. 453, MOLDERS' 873
labor practice c-large with the NLRB, Respondent has
been guilty of violating Section 8(b)(1)(A) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2
Respondent , Local 453, International Molders' and
Allied Workers' Union, AFL-CIO, its officers , agents, and
representatives , shall:
1. Cease ane desist from refusing to process the
grievance or in any like or related manner restraining or
coercing employees in the exercise of their rights guaran-
teed by the National Labor Relations Act, as amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post in conspicuous places at its business offices,
2 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
meeting halls, and all places where notices to members are
customarily posted, copies of the attached notice marked
"Appendix."3 Copies of said notice to be furnished by the
Regional Director for Region 25, shall, after being duly
signed by Respondent's . authorized representative, be
posted by Respondent immediately upon receipt thereof
and be maintained by it for 60 consecutive days.
Reasonable steps shall be taken by Respondent to insure
that such notices are not altered, defaced, or covered by
any other material.
(b) Sign and mail sufficient copies of said notice to the
Regional Director for Region 6, for posting by the
Company if willing, at all locations where notices to
employees are customarily posted.
(c) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
e In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "