Oil Workers Local 4-23 (Gulf Oil)

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 475 (N.L.R.B. 1985)

OIL WORKERS LOCAL 4-23 (GULF OIL)
Oil, Chemical and Atomic Workers International,
Union , Local Union No. 4-23 , AFL-CIO ,and
Gulf Oil Corporation . Case 23-CB-2779
28 February 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 7 December 1983 Administrative Law Judge
William A. Gershuny issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Employer-Charging Party and the
General Counsel filed briefs in response.
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 2
and conclusions3 and to adopt the recommended
Order as modified.4
1. We agree with the judge's conclusion that the
Respondent violated Section 8(b)(1)(A) by expel-
ling Supervisor Rhodes based on Rhodes' previous
arbitration testimony while still an employee5
which had supported management's discharge of a
fellow union member. The judge based his conclu-
sion on the impact of Rhodes' expulsion on other
employee-members who might be restrained in ex-
ercising their Section 7 rights to testify against
grievants in contractual arbitration hearings. We
note in support of his conclusion that the Respond-
ent's membership was well aware that the Re-
spondent expelled Rhodes for this reason as ex-
plained below.6
I The Respondent has requested oral argument The request is denied
as the record , exceptions , and briefs adequately present the issues and the
positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
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 reversing
the findings
2 The judge inadvertently states in the first paragraph of his decision
that the complaint alleges that the Respondent violated Sec 8(b)(4) The
complaint does not allege this violation, nor was it passed on This inad-
vertent error does not affect our decision The judge also inadvertently
neglected to state whether the Respondent engaged in unfair labor prac-
tices affecting commerce We find that the Respondent 's unfair labor
practices affect commerce within the meaning of Sec 2(6) and (7) of the
Act
4 The Order is modified to require that the Respondent expunge from
its records evidence of its unlawful discipline of Rhodes and that he be so
notified See Plumbers Local 119 (Kamtech, Inc), 264 NLRB 688 (1982)
5 The record indicates generally that Rhodes served as a temporary
"relief" supervisor during various , apparently limited , periods starting in
1978, including in June 1979 and May 1981 , as a result of which he was
called to give arbitration testimony in November 1982 However, the
record does not indicate that Rhodes served as a supervisor at the time
he gave this arbitration testimony His promotion to permanent supervi-
sor did not occur until March 1983
8 Member Hunter disagrees that the Union violated Sec 8 (b)(1)(A) by
expelling Rhodes from membership Member Hunter notes that Rhodes
475
Shortly after the arbitration hearing at which
Rhodes testified, an officer of the Respondent who
had attended the hearing filed internal union
charges against Rhodes. These charges alleged,
without specification, that' Rhodes had engaged in
"conduct detrimental to the welfare and interests
of the membership." The Respondent publicized
these charges by posting them on the union bulletin
board and by announcing them at a general mem-
bership meeting.
At its next general membership meeting the Re-
spondent tried Rhodes, the union officer who had
filed the charges presented the case against him.
The officer's presentation consisted entirely of an
account of Rhodes' arbitration testimony regarding
why Rhodes had prepared two poor work per-
formance letters on the grievant and the related
contention that Rhodes' conduct as a supervisor
had been improper. No other evidence was offered
against Rhodes , and Rhodes did not attend the
trial. Based on this evidence the members at the
meeting voted to expel Rhodes.
On these facts we agree with the judge that the
record establishes that the Respondent expelled
Rhodes based on his arbitration testimony given as
an employee as well as on the supervisory conduct
Rhodes testified to at the arbitration. Both of these
bases for the discipline violate the Act, and in par-
ticular the Respondent's expulsion of Rhodes vio-
lated Section 8(b)(1)(A) by its general impact on
employee-members who may wish to testify against
grievants in contractual arbitration hearings.? As
stated above, Rhodes was an employee at the time
of his arbitration testimony and his expulsion for
such testimony has a direct, adverse impact on
other employees who would so testify.8
2. We also agree with the judge's conclusion that
the Respondent violated Section 8(d) and Section
8(b)(3) of the Act by disciplining Rhodes for testi-
fying at the contractual arbitration hearing.9 Pro-
had been promoted into a permanent supervisory position some 5 weeks
before his expulsion from membership Thus, as a supervisor Rhodes had
no protected right to belong to the Union Accordingly , the Union could
expel Rhodes from membership for any reason without violating Sec
8(b)(1)(A) Thus, contrary to his colleagues , Member Hunter would dis-
miss the 8 (a)(1)(A) allegation However , Member Hunter does agree that
the Union's conduct was violative of Sec 8(b)(3) and Sec 8(d) in that the
Union thereby obstructed the operations of the arbitration procedure set
forth in the collective-bargaining agreement and also violated Sec
8(b)(1)(B) because the Union 's action was motivated by Rhodes ' behavior
while he was acting as a supervisor
' It is equally clear that the related allegation against Rhodes in sup-
port of his expulsion, that he engaged in misconduct as a supervisor, sup-
ports the judge 's conclusion that the Respondent also violated Sec
8(b)(1)(B) of the Act
8 We find that Rhodes' subsequent promotion to supervisor provides
no basis for legitimizing union discipline directed at such employee con-
duct
8 In stating that the Respondent violated Sec 8(b)(1)(A) and (3) and
Sec 8(d) the judge explained that the "latter two sections were violated
Continued
274 NLRB No. 63
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tection of the arbitral process is a cornerstone in
the Federal statutory scheme of promoting indus-
trial peace by the application and interpretation of
the collective-bargaining agreement. The Supreme
Court, recognizing the importance of safeguarding
the arbitral process, sanctioned its integrity in the
Steelworkers trilogy.10 The Board, too, has recog-
nized this importance through its deferral policies.
To maintain the confidence of those subject to its
processes, to assure its integrity and effectiveness as
a means of dispute resolution, and to protect its
status with respect to our deferral policies, arbitra-
tion must be shielded against measures which
would tend to discourage any individual from ap-
pearing and testifying fully and truthfully. Union
rules and discipline which are designed to discour-
age or prevent individuals from testifying or being
called as witnesses in grievance-arbitration hearings
are inherently destructive of the contractual arbi-
tral process and are therefore unlawful. The
Union's discipline of Rhodes for giving arbitration
testimony adverse to the grievant tended to ob-
struct and impair the arbitral process. Accordingly,
not to find a violation of Section 8(d) and Section
8(b)(3) under these circumstances would sanction
the perversion of the parties' arbitration clause and
the impairment of this voluntarily agreed-upon dis-
pute resolution procedure.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Oil, Chemical and Atomic Workers
International Union, Local Union No. 4-23, AFL-
CIO, Port Arthur, Texas, its officers, agents, and
representatives, shall take the action set forth in the
Order as modified.
1. Delete paragraph 2(a) and substitute the fol-
lowing.
"(a) Rescind the discipline imposed against Larry
Rhodes, expunge from its records all references to
such discipline, and notify him in writing that this
has been done and that the discipline will not be
used as a basis for future action against him."
2. Substitute the attached notice for that of the
administrative law judge.
derivatively because the union discipline obstructs and nullified the con-
tractual arbitration clause " We disavow reliance on any suggestion that
the Respondent's violations of Sec 8(b)(3) and Sec 8(d) were derivative
rather than independent violations of the Act See Teamsters Local 788
(Marston Ball), 190 NLRB 24 (1971)
10 Steelworkers v American Mfg Co, 363 U S 564 (1960), Steelworkers
v Warrior & Gulf Co, 363 US 574 (1960), Steelworkers v Enterprise
Corp, 363 U S 593 (1960)
APPENDIX
NOTICE To EMPLOYEES AND 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.
WE WILL NOT restrain and coerce (i) employees
in the exercise of their rights under Section 7 of
the Act and (ii) employers in the selection of their
representatives for purposes of the adjustment of
grievances by charging, trying, fining, or otherwise
disciplining our members because they gave testi-
mony in arbitration procedures under the collec-
tive-bargaining agreement, and by such conduct
thereby impairing the integrity of such arbitration
procedures.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of their
Section 7 rights or employers in their selection of
representatives for purposes of the adjustment of
grievances or refuse to bargain with employers in
violation of Section 8(d) and Section 8(b)(3).
WE WILL rescind the discipline imposed against
Larry Rhodes, expunge from our records all refer-
ences to such discipline, and notify him in writing
that this has been done and that the discipline will
not be used as a basis for future action against him.
OIL, CHEMICAL AND ATOMIC WORK-
ERS INTERNATIONAL UNION, LOCAL
UNION No. 4-23, AFL-CIO
DECISION
STATEMENT OF THE CASE
WILLIAM A. GERSHUNY, Administrative Law Judge
A hearing was conducted in Port Arthur, Texas, on Oc-
tober 6-7, 1983, on complaint issued July 19, 1983, alleg-
ing a violation of Section 8(b)(1)(A) and Section 8(b)(3)
and (4) of the Act based on the expulsion of Supervisor
Rhodes from union membership on April 18, 1983.
On the entire record, including my observation of wit-
ness demeanor, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that Gulf Oil Corporation is an employer subject to the
Act and that Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
OIL WORKERS LOCAL 4-23 (GULF OIL) 477
II THE UNFAIR LABOR PRACTICE
The relevant facts are largely undisputed.
At Gulf's Port Arthur refinery, where all operating
and maintenance employees are represented by Respond-
ent Union, it has been a longstanding practice (acknowl-
edged in art VI, sec. I(A)4(b)(6) of the current labor
agreement) to use bargaining unit employees to "relieve"
supervisors when the need arises due to sickness, vaca-
tion, and additional workloads. While serving as tempo-
rary supervisors, such employees continue to accrue bar-
gaining unit seniority, are paid an adjusted hourly rate,
retain their union membership, continue to pay union
dues, and retain all the fringe benefits of a unit employee.
There is no contactual limitation on the period of time
an employee may serve as temporary supervisor, al-
though, in practice, such employees relieve a permanent
supervisor only for a brief period of days or weeks.
Before their designation as temporary supervisors, the
hourly employees are tested for their potential ability to
become permanent supervisors and receive training from
permanent supervisors as to their duties and obligations
This practice is an integral part of company policy
which selects its supervisors from the ranks of hourly
employees.
Temporary supervisors perform all the duties and pos-
sess all the authority of permanent supervisors: to direct
the work force, to enforce company work rules and
standards, to receive and adjust grievances at step one of
the contractual grievance-arbitration procedure, to mete
out discipline to hourly employees, to submit oral and
written reports to management concerning employee
misconduct, and to testify on behalf of the Company at
arbitration hearings or other proceedings relating to such
employee misconduct. There is no contractual limitation
on the authority of temporary supervisors, but neither
permanent nor temporary supervisors have any responsi-
bility or authority in connection with collective bargain-
ing.
For some years, there has existed what the chairman
of the Union's workmen's committee aptly described as
an oral "understanding" between the Union and the
Company that, whenever possible, hourly employees in
their capacity as temporary supervisors would not be put
in a position of having to discipline a union brother or
sister. The basis of the understanding was a joint recog-
nition of the potential conflict which confronts a tempo-
rary supervisor who may be called upon to report and
testify against a union member, in contravention of a
union member's oath to "refrain from making statements
against brothers.. . ." In the past, temporary supervisors
have imposed discipline, adjusted grievances, and submit-
ted written and oral reports on employee misconduct
On rare occasions, hourly employees have been subpoe-
naed by management to testify at arbitration proceedings,
but the record is not clear as to whether such employees
actually testified Apparently no temporary supervisor
has ever testified on behalf of management at an arbitra-
tion hearing prior to the one involved in this case
In 1978, bargaining unit employee Rhodes was select-
ed as a potential supervisor, was given training and, from
time to time thereafter, served as a temporary supervisor
in the laboratory In June 1979, temporary Supervisor
Rhodes prepared a poor performance report on employ-
ee Hudson and submitted it to the director of the labora-
tory Hudson accused Rhodes of making false statements
in the report. Two years later, in May 1981, Rhodes
again disciplined Hudson for an excessive absence from
her work station, giving her an oral warning and submit-
ting a written report to the director In November 1982,
during the course of an arbitration proceeding involving
the discharge of Hudson, Rhodes testified on behalf of
management as to the two prior incidents in which he, as
a temporary supervisor, had taken disciplinary action
against Hudson. The union representative objected to the
testimony of a union member and, when the objection
was overruled by the arbitrator, he declined to ask any
questions, stating that he would not cross -examine a
union brother.
On March 14, 1983, Rhodes was appointed a perma-
nent supervisor, the checkoff of dues ceased. It is unclear
when union membership ended.
One week later, he received written notification that a
formal intraunion charge had been filed against him by
the union representative at the arbitration hearing, alleg-
ing a violation of article V, section 4(10) of the union
constitution ("engaging in conduct detrimental to the
welfare and interests of the membership . . ."). The
charges were considered by the union membership at a
special meeting on April 4, 1983, and thereafter on April
18, a union trial was conducted, Rhodes was found
guilty of the charges and he was expelled from member-
ship, despite the fact that, 5 weeks earlier, Rhodes had
become a supervisor and no longer paid union dues. No-
tices of the special meeting and of the trial were posted
on union bulletin boards at the refinery and, at both ses-
sions, the charges were explained to the members. The
bases of the charge against Rhodes, as explained to the
members, were (1) the disciplinary action against Hudson
taken by Rhodes while a temporary supervisor (written
and oral reports to management concerning Hudson's job
performance) and (2) the overzealous performance of
Rhodes' duties as temporary supervisor, which appeared
to the Union to be an effort on Rhodes' part to get infor-
mation to facilitate the eventual discharge of Hudson.
The record evidence raises a strong inference that yet a
third basis for the charge existed-Rhodes' testimony at
the arbitration hearing in support of management's dis-
charge of Hudson.
Board law is clear that Section 8(b)(1)(A) and (3) and
Section 8(d) are violated by union discipline of employ-
ee-members for testifying in contractual arbitration pro-
ceedings against a union member Auto Workers Local
1989 (Caterpillar Tractor), 249 NLRB 922 (1980), Team-
sters Local 788 (Marston Ball), 190 NLRB 24 (1971). The
latter two sections are violated derivatively because the
union discipline obstructs and nullifies the contractual ar-
bitration clause Here, one of the bases for the discipline
against Rhodes was the giving of testimony against an-
other member whose grievance had been carried to arbi-
tration. Whether, at the time of the union disciplinary
proceeding, Rhodes continued to be a member is not all
that clear from the record evidence: he had become a
permanent supervisor 1 week earlier and dues checkoff
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had ceased. For purposes of this case, however, it must
be assumed that his membership remained in effect
during the disciplinary proceedings, since there would
have been no purpose for the proceedings had the Union
considered Rhodes no longer a member. In any event,
the discipline was violative of the Act because of its
impact on other employee-members who might be re-
strained in the exercise of their Section 7 rights to give
testimony against grievants in arbitration hearings. Metal-
lic Lathers Local 46 (Cement League), 259 NLRB 70
(1981).
Moreover, the union discipline violated Section
8(b)(1)(B) because it, in part at least, was directed against
temporary Supervisor Rhodes for his participation in
grievance adjustment procedures under the contract. Co-
lumbia Typographical Union 101 (Washington Post), 207
NLRB 841 (1973); Florida Power v. Electrical Workers
IBEW Local 641, 417 U.S. 790 (1974). Here, the evidence
is clear and unmistakable that temporary supervisors pos-
sess all the authority of permanent supervisors with re-
spect to the adjustment of grievances. to receive and dis-
pose of grievances at step one, to submit written and oral
reports of discipline to management; and to participate in
grievance adjustment through the giving of testimony at
arbitration proceedings.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent , Oil, Chemical and Atomic Workers
International Union Local Union 4-23, AFL-CIO, Port
Arthur, Texas, its officers , agents, and representatives,
shall
1. Cease and desist from
(a) Restraining and coercing (i) employees in the exer-
cise of their rights under Section 7 of the Act and (ii)
employers in the selection of their representatives for
purposes of the adjustment of grievances, by charging,
trying, fining, or otherwise disciplining its members be-
cause they gave testimony in arbitration procedures
under the collective-bargaining agreement, and by such
conduct thereby impairing the integrity of such contract
procedures.
(b) In any like or related manner restraining and co-
ercing employees in the exercise of their Section 7 rights
or employers in their selection of representatives for pur-
poses of the adjustment of grievances or by refusing to
bargain with employers in violation of Section 8(b) and
Section 8(b)(3).
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the discipline imposed against Larry
Rhodes and expunge from its records references to such
discipline.
(b) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."2 Copies of the
notice, on forms provided by the Regional Director for
Region 23, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
' 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.
2 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 "