Oil Workers Local 2-947 (Cotter Corp.)

National Labor Relations Board - Board Decisions

Jun 22, 1984

270 N.L.R.B. 1311 (N.L.R.B. 1984)

OIL WORKERS LOCAL 2-947 (COTTER CORP.)
Oil, Chemical and Atomic Workers International
Union, Local 2-947 (Cotter Corporation) and
Joseph J. Ceremuga. Case 27-CB-1895
22 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 19 January 1984 Administrative Law Judge
David G. Heilbrun issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief to the 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 only to the extent consistent with this
Decision and Order.
We adopt the judge's findings that the Respond-
ent did not, as alleged, violate Section 8(b)(1)(A) of
the Act by refusing to proceed to arbitration on
Joseph Ceremuga's grievance or by certain remarks
that its union steward made while handling the
grievance. The judge also found no violation in the
threat of bodily harm which the Respondent's
president, James Wilkins, made to Ceremuga. For
the reasons set forth below, we find merit in the
General Counsel's exceptions to this last finding of
the judge.
The record evidence shows that, after the Re-
spondent's grievance committee voted against
taking Ceremuga's grievance to arbitration, Wilkins
phoned the grievant to inform him of the decision.
During the lengthy conversation that ensued, Wil-
kins alluded to Ceremuga's lack of union member-
ship while Ceremuga vigorously argued that his
grievance had merit. They also discussed the unfair
labor practice charge which Ceremuga previously
had filed against the Respondent and which he had
later withdrawn. Ultimately, both speakers' tem-
pers flared, whereon Wilkins admittedly threatened
to come over and "slam-dunk" Cereguma's face.
According to Ceremuga, this threat was made after
he announced his intention of filing a new charge.
Wilkins stated, by contrast, that it was Ceremuga's
abusiveness toward him which provoked these re-
marks and that he had prefaced them with the
statement that they were completely divorced from
his role as the Respondent's president. The judge
found that the "slam-dunk" remark was an isolated
utterance, strictly personal, and tempermental in
270 NLRB No. 196
nature which does not warrant the finding of a vio-
lation.
Contary to the judge, we find that Wilkins'
threat unlawfully restrained and coerced Ceremuga
in his right to use the Board's processes. Wilkins
admitted at the hearing that Ceremuga's earlier
Board charge was discussed in their conversation.
More critically, Ceremuga testified, as noted, that
he mentioned filing a new charge after Wilkins in-
formed him that the Respondent was dropping his
grievance. Although the judge did not fully credit
Ceremuga's testimony regarding this conversation,
we note that Ceremuga was not specifically dis-
credited on this point. Based on the circumstances
present here, we find that the logical inference is
that Ceremuga's reference to filing a new charge
provoked Wilkins into threatening him with physi-
cal violence. There is no other reasonable explana-
tion for Wilkins' action. Accordingly, we find that
the Respondent violated Section 8(b)(1)(A) of the
Act by engaging in such conduct.1
THE REMEDY
Having found that the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act, we
shall order that it cease and desist therefrom and
take certain affirmative action designed to effectu-
ate the purposes of the Act.
CONCLUSIONS OF LAW
1. Cotter Corporation is an employer within the
meaning of Section 2(2) of the Act and is engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
I See, e.g., Petersnburg Associates, 239 NLRB 1091, 1104 (1979).
Although we reverse the judge in this one respect, we note that the
finding of a violation in Wilkins' phone threat is insufficient to affect our
conclusion that the Respondent was not motivated by invidious consider-
ations in abandoning Ceremuga's grievance. It was Herbert "Bill" Rowe,
a union steward, and not Wilkins who had been the Respondent's official
primarily responsible for handling the grievance. Rowe clearly was sym-
pathetic toward the Charging Party's case. Wilkins' role was limited to
directing the grievance committee meeting on the subject in the absence
of the committee chairman. He is not a member of that committee and
had no vote in the matter. Furthermore, we agree with the judge's find-
ing that the Respondent acted reasonably and in good faith when it de-
cided that Ceremuga's grievance was lacking in merit and should not be
taken to arbitration. Thus, the Respondent properly evaluated the likeli-
hood of success-which it considered minimal-against the cost of arbi-
tration, at a time when the Respondent had limited resources. The Re-
spondent had $441 in its treasury to pay for an arbitration that would
cost about $650. Finally, it is noteworthy that the Respondent had suc-
cessfully arbitrated another nonmember's grievance the year before Cere-
muga was discharged. Thus, we find that the Respondent acted reason-
ably and did not discriminate against Ceremuga in refusing to proceed to
binding arbitration. Accordingly, we affirm the judge's finding that the
Respondent did not violate Sec. 8(bXIXA) of the Act by abandoning
Ceremuga's grievance. In reaching this conclusion, we find it unnecessary
to rely on the judge's citation of various arbitration cases, since there is
no evidence that they played a role in the Respondent's decision concern-
ing the processing of the grievance.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Oil, Chemical and Atomic Workers Interna-
tional Union, Local 2-947, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening an employee with physical
harm for indicating that he planned to file charges
with the Board, the Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Oil, Chemical and Atomic Work-
ers International Union, Local 2-947, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Threatening employees with physical harm
for indicating that they plan to file unfair labor
practice charges with the Board.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at all its offices and union halls copies of
the attached notice marked "Appendix." 2 Copies
of the notice, on forms provided by the Regional
Director for Region 27 after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Promptly after receipt of unsigned copies of
said notices from the Regional Director, return to
him a sufficient number of signed copies for post-
ing by Cotter Corporation, if the latter is willing,
at all places where notices to employees are cus-
tomarily posted.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges unfair labor practices
not found herein.
If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten employees with physical
harm for indicating that they plan to file unfair
labor practice charges against us with the National
Labor Relations Board.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
OIL, CHEMICAL AND ATOMIC WORK-
ERS INTERNATIONAL UNION, LOCAL
2-947
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This
case was tried at Denver, Colorado, September 1 and 2,
1983.1 The charge was filed by Joseph J. Ceremuga on
March 30 and complaint was issued May 17. The pri-
mary issue is whether Oil, Chemical and Atomic Work-
ers International Union, Local 2-947, called the Union,
has violated Section 8(b)(1)(A) of the National Labor
Relations Act by failing to adequately represent Cere-
muga and process a grievance to arbitration concerning
his discharge from employment by Cotter Corporation.
On the entire record, including my observation of the
demeanor of witnesses, and after consideration of briefs
filed by the General Counsel and the Union, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Cotter Corporation has a principal office and place of
business at Lakewood, Colorado, and operates a uranium
mine at Golden, Colorado, where it annually ships goods
I All dates hereafter are in 1983, unless otherwise indicated.
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OIL WORKERS LOCAL 2-947 (COTTER CORP.)
valued over S50,000 directly outside that State. As ad-
mitted I find it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and that the Union is a labor organization within the
meaning of Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
The parties have a collective-bargaining agreement
which contains express management rights, a grievance
and arbitration procedure leading to binding resolution
of disputes, and a checkoff clause for employees electing
membership in the Union. Cotter's Schwartzwalder Mine
is the facility involved in this proceeding. Management
personnel there include Superintendent Mary Murray,
Foreman Bill Pierce, and Paul Hazdra as a first-line su-
pervisor, titled shifter. James Wilkins is union president,
while Vice President Donald DuVall also serves as
chairman of a six-member grievance committee.
Ceremuga had worked since January 1982 as a miner
trainee. For about the last 5 months of 1982 his regular
assignment was a bonus partnership system with employ-
ee Andy Patterson doing underground work. Ceremuga
had also occasionally worked at surface ore sorting on a
main tram. Such an assignment materialized on both De-
cember 29 and 30, 1982, when Patterson was off ill. The
unexpected change caught Ceremuga without sufficient
warm clothes for such outdoor winter work, and he ob-
tained some from the company safety director on the
second day after telephone contact with the Mining
Safety and Health Administration. A 3-day holiday shut-
down followed, yet Patterson was not back to work by
the first Monday's reopening. On January 3 Ceremuga
worked underground, and on January 4 was assigned the
tram again after Hazdra had advised him it was likely,
which allowed him to dress for the assignment.
Patterson returned to work on January 5; however
Hazdra assigned him to leyner work with another experi-
enced employee and directed Ceremuga to work the
main tram again. Ceremuga protested that this was dis-
criminatory and unfair, but Hazdra insisted on the assign-
ment suggesting that Ceremuga file a grievance. He was
unwilling to work again in cold weather and left the
mine site. Hazdra immediately placed him on suspension
for insubordination, and the next day grievance number
179 was filed on his behalf by Steward Herbert (Bill)
Rowe. Ceremuga testified, without contradiction, that
Rowe soon remarked to him about certain employees,
themselves members of the Union, having implied that
this grievance of nonmember Ceremuga could be blown,
which Rowe assured he would not do because it was un-
lawful.
A step-one grievance meeting on January 10 was una-
vailing, and the matter advanced to step two conducted
on January 13. Here Rowe raised the situation of em-
ployee Bud Johnson's once having engaged in a similar
infraction without being terminated, which management
agreed to consider. Ceremuga testified that on leaving
the meeting Rowe stated that the grievance would go
easier for a member of the Union. Rowe conceded
making the basic remark, credibly adding that he had
said it was not an obligation for grievance handling.
Upon this Ceremuga promptly signed a checkoff authori-
zation for processing.
At step 3 on January 20 steward Dean Augenstein re-
placed vacationing Rowe. By this time Ceremuga had
freely admitted to hot-headed behavior on January 5. It
was also known that Murray had previously contrived
an offensive ethnic joke, and made an apology after Cer-
emuga complained to Duane Dughman, Cotter's vice
president for administration. This meeting brought no
change to pending discipline, leaving Ceremuga dis-
mayed about Augenstein having, by word and deed,
treated the case as "cut and dried" against him.
At step 4, on January 31, union representatives again
argued the case with Ceremuga present. However Mine
Manager Donald Little wrote them on February 3 to say
that the company distinguished the Bud Johnson episode
(as to which Rowe had requested written details), and
that it believed the suspension was justified in light of
flagrant insubordination before other employees. The fol-
lowing day General Mine Manager Robert Hedlund noti-
fied Ceremuga that he was terminated.
Ceremuga had filed an unfair labor practice charge
against the Union on January 26, basing this on an asser-
tion of unfair representation because of his nonmember-
ship. After Wilkins and Rowe jointly signed an arbitra-
tion request, Ceremuga withdrew the pending charge on
February 15. The matter was then considered by the
Union's grievance committee on March 19 with Wilkins
chairing this meeting in the absence of DuVall. After de-
liberating, the committee voted 5 to I not to arbitrate,
and Wilkins telephoned Ceremuga to so advise him. A
long conversation ensued in which Wilkins alluded to
Ceremuga's lack of membership, while the latter con-
tended his case had merit. The conversation became in-
creasingly peevish, until Wilkins finally said he might
"slam-dunk" Ceremuga's face. They soon hung up on
each other and a few minutes later, at Wilkins' request,
Union Secretary-Treasurer Dan McMahan telephoned
Ceremuga to ask his address for the purpose of mailing
an invitation to the next membership meeting.
At the next such meeting on April 13 the body voted
not to arbitrate Ceremuga's grievance. Remarks in this
proceeding included those noting that he was not a
member. In fact, Ceremuga's signed checkoff authoriza-
tion of January 14 was unprocessed by the time its pur-
pose became futile when a company payroll functionary
noted his termination.
B. Analysis
The standard for determining whether a labor organi-
zation has unlawfully failed to carry a grievance through
final dispute resolution is stated in Glass Bottle Blowers
Local 106 (Owens-Illinois), 240 NLRB 324 (1979). The
rule is that, once a grievance becomes undertaken, its
abandonment, short of arbitration, is evaluated as an
8(b)(l)(A) issue in terms not of intrinsic merits of the
claim but, rather, whether the union's disposition of such
grievance was perfunctory or motivated by ill will or
other invidious considerations. Where animus is not
present, the question that remains is whether grievance
handling was merely perfunctory and thus a violation of
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the duty of fair representation to employees. The Board
terms a "well settled" statement of the principle to be
that written in Service Employees Local 579 (Beverly
Manor), 229 NLRB 692 at 695 (1977):
So long as [a Union] exercises its discretion in good
faith and with honesty of purpose, a collective-bar-
gaining representative is endowed with a wide
range of reasonableness in the performance of its
duties for the unit it represents. Mere negligence,
poor judgment, or ineptitude in grievance handling
are insufficient to establish a breach of the duty of
fair representation.
Here the situation is that of a small local with a treas-
ury of $441 to weigh against financing a formal arbitra-
tion in which any outcome would require equal sharing
costs. In at least one prior case a nonmember's grievance
was arbitrated, and successfully so, while no convincing
evidence is present to show that Ceremuga's membership
status was an actual factor. Neither Rowe's passing on of
what others said to him, nor Wilkins' bullying threat
made from the Augenstein home while probably inebriat-
ed, truly revealed the dynamics involved. I credit Cere-
muga's testimony as to several essentials of the Wilkins
conversation; however, this does not address the fact
that other members of the grievance committee imparted
their own independent, good-faith appraisal of the case.
This also applies to the membership meeting itself where
the final decision to leave Ceremuga without contractual
redress was founded exclusively on reasons within the
proper discretion of a local union's constituency. The
earlier written binding over of the case to arbitration was
merely a tactical move to avoid exceeding jurisdictional
time limits set forth in the contract.
It cannot be gainsaid that the current state of "fair rep-
resentation" doctrine has but complicated the always
delicate job of evaluating worker grievances. It also has
been authoritatively noted that conflicting claims among
types of employees "can be a source of real difficulty for
union leadership in grievance handling," and that this
"political burden," coupled with "current stress on indi-
vidual rights," has made even more difficult "the un-
pleasant duty of screening out grievances that lack con-
tractual merit." Harold W. Davey, Contemporary Collec-
tive Bargaining 3d edition, Prentice Hall, Inc. (1972), at
149-150. The principle involved has been broadened
upon by observation that the right to fair representation
"does not, for example, include a right to have one's
grievance go all the way to arbitration, regardless of its
contractual merit," and that "it is the contract that must
become the decisive consideration in further processing
of a grievance, rather that the personal whims of an indi-
vidual worker" (emphasis added).
The reality is that a fact situation as here presented
would have scant likelihood of success. While this ap-
praisal is a collateral one under Glass Bottle Blowers, it
does relate to the germane question of whether the
Union acted with mere perfunctory disdain or with an
awareness of their free-floating obligation to represent
employees. Ceremuga had freely admitted to the essen-
tials of an insubordinate act and no precedent was avail-
able for the Union to effectively argue inconsistency of
treatment by the Employer. The general arbitration
process is rife with examples of how circumstances of
this type might fare. In Eastern Consolidated Coal Co., 66
LA 162 (M. Lubow), a mine worker was found properly
disciplined for insubordination after refusing to move
four 50-pound rockdust bags on a wheelbarrow after he
had previously moved eight bags of the same weight. In
Kohler Co., 62 LA 1148 (V. Chaffin), the arbitrator found
an employer had properly discharged a 14-year worker
for refusing to perform a new task in partnership ar-
rangement with two of his coworkers, despite the refusal
being based on fear of aggravating a preexisting back
injury. In Celotex Corp., 52 LA 1187 (N. Cayton), a 12-
day suspension was found justified where an employee
refused a snow shoveling assignment by claiming recov-
ery from flu, where, in actuality, he was merely follow-
ing a coworker's example. In Minnesota Mining & Mfg.
Co., 59 LA 375 (J. Silver), an employer was found justi-
fied in discharging an electrician who refused the fore-
man's order to change generator brushes located on the
plant roof during cold weather and who left the premises
immediately thereafter without obtaining permission. In
United McGill Corp., 79 LA 327 (T. Dyke), the arbitrator
found an employer to have properly discharged the
senior member of a two-man sandblaster team who re-
fused after three orders to complete 1-1/2 hours of shift,
saying it was the junior member's turn to do the job and
not his pursuant to a work arrangement between man-
agement and the team. These illustrations, coupled with
a lack of sufficient evidence to show that membership
considerations influence the Union's decision, plus that it
was financially ill-prepared for the likely cost of an arbi-
tration proceeding, leave the decision to drop Ceremu-
ga's case a not unreasonable one within the intendment
of Beverly Manor.
A final assessment concerns the statements in January
and March by Rowe and Wilkins, respectively, which
are present in the case as alleged violations of Section
8(b)(1)(A). I first observe that Rowe was the one person
of authority within the Union showing genuine sympathy
toward Ceremuga and a dogged belief in his cause.
However Rowe's actual remarks, as embodied in allega-
tions of subparagraphs (c) and (d) to paragraph V of the
complaint, are, in my view, informative and not coercive
as a matter of law. To state that an unworthy suggestion
has been renounced and to comment passingly about a
natural affinity relationship is a common, expectable
form of dialogue in an employment setting in which
membership in the collective-bargaining agent is not
compulsory. The allegations against Wilkins, as grounded
in subparagraphs (a) and (b) of paragraph V, have a dif-
ferent infirmity. I cannot credit Ceremuga in full respect-
ing the content of remarks made over the telephone
while Wilkins was "babbling," sounding "drunk," and
"slurred" of speech. I find the facts to be that Ceremuga
dismayedly accused Wilkins of harboring bias against
nonmembers and in the extended conversation to follow
this belief was not effectively dispelled by words. That is
a more persuasive composite of testimony from both par-
ticipants, and leaves subparagraph (a) lacking in suffi-
1314
OIL WORKERS LOCAL 2-947 (COTTER CORP.)
cient proof. The "slam-dunk" remark was tacitly admit-
ted by Wilkins, however, this isolated utterance, strictly
personal and temperamental in nature, does not merit an
unfair labor practice finding.
I accordingly render a conclusion of law that the
Union has not failed to accord Ceremuga full and fair
representation in considering whether or not to carry his
grievance to arbitration, nor has it otherwise violated the
Act.
[Recommended Order for dismissal omitted from pub-
lication.]
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