Oil Workers Local 5-114 (Colgate-Palmolive Co.)

National Labor Relations Board - Board Decisions

Aug 21, 1991

304 N.L.R.B. 167 (N.L.R.B. 1991)

167
304 NLRB No. 25
OIL WORKERS LOCAL 5–114 (COLGATE-PALMOLIVE CO.)
1 On December 5, 1990, Administrative Law Judge Steven M. Charno
issued the attached supplemental decision. The Respondent filed exceptions
and a supporting brief.
The National Labor Relations Board has delegated its authority in this pro-
ceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
3 295 NLRB 742. Specifically, the Board found that the Respondent unlaw-
fully refused to process Moody’s grievance to arbitration because of his non-
union status. Moody was not a member of the Respondent but was at all rel-
evant times a member of the unit covered by the collective-bargaining agree-
ment between the Respondent and the Employer.
4 Pursuant to Mack-Wayne II, when a union violates Sec. 8(b)(1)(A) by
breaching its duty of fair representation with regard to the processing of an
employee’s grievance, the General Counsel in order to be entitled to a provi-
sional make-whole remedy has the initial burden of establishing that the em-
ployee’s grievance was not clearly frivolous. If the General Counsel estab-
lishes that nexus between the union’s unlawful conduct and the remedy, the
burden of proof then shifts to the union to establish that the grievance was
not meritorious. The union is given the option of litigating the merits of the
employee’s grievance at either a reopened unfair labor practice hearing or at
the subsequent compliance stage.
5 Buckley was deceased prior to the hearing. In addition, an eyewitness, em-
ployee Bratton, was in prison and did not testify. Distribution Manager Free-
man, who had retired, also did not testify.
6 All dates are in 1986 unless otherwise indicated.
7 Moody testified that he had to move the pallets in order to continue work-
ing, and admitted that he did so without first talking to Buckley’s crew.
Brunson testified that his team moved the pallets within minutes and that he
did not understand why Moody did not perform other work during the short
time the pallets were being removed. Brunson further testified that by relocat-
ing the pallets, Moody created more work for Buckley’s team.
8 There is a factual dispute, which the judge did not resolve, as to whether
Buckley elevated the tines on his truck or flashed his headlights as he drove
toward Moody.
Oil, Chemical and Atomic Workers International
Union Local No. 5–114, AFL–CIO (Colgate-
Palmolive Company) and Ronald A. Moody.
Case 17–CB–3426
August 21, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
Exceptions filed to the judge’s supplemental deci-
sion in this case1 present the question of whether the
Respondent met its burden under Rubber Workers
Local 250 (Mack-Wayne), 290 NLRB 817 (1988)
(Mack-Wayne II), of demonstrating that Charging Party
Moody’s grievance was not meritorious.
The Board has considered the exceptions in light of
the record and brief and has decided to affirm the
judge’s rulings, findings,2 and conclusions only to the
extent consistent with this Supplemental Decision and
Order.
On June 15, 1989, the Board issued its Decision and
Order in this proceeding finding that the Respondent
violated Section 8(b)(1)(A) by its disparate treatment
of Charging Party Moody’s grievance concerning his
disciplinary suspension for fighting with employee
Buckley.3 Applying Mack-Wayne II,4 the Board found
that the grievance was not clearly frivolous and re-
manded the case to the judge for a determination of
the merits of the grievance, which the Respondent
elected to litigate at a reopened hearing. Based on the
evidence presented, the judge found that it was ‘‘im-
possible to conclude that an arbitrator would nec-
essarily have found that Moody was a mutual combat-
ant who deserved the same punishment imposed on
Buckley.’’ Finding that under Mack-Wayne II the Re-
spondent had to prove that there was no way that
Moody could prevail in arbitration, the judge con-
cluded that the Respondent did not meet its burden of
proof and, therefore, must make Moody whole for
losses arising from its various violations in the han-
dling of Moody’s grievance. For the reasons set forth
below, we find merit in the Respondent’s contention
that it met its burden of proof under Mack-Wayne II.
We therefore reverse the judge and find that the Re-
spondent is not liable for backpay.
The facts as found by the judge and established by
the testimony at the hearing are as follows.5 Moody
was hired by the Employer on November 2, 1981, and
Buckley was hired on September 7, 1966. Moody was
about 5 feet 8 inches tall and weighed 145 pounds;
Buckley was about 6 feet tall and weighed 200
pounds. Both employees had good work records.
Moody was transferred to the Employer’s Osage ware-
house in September 1986.6 On the morning of Novem-
ber 4, Moody was in the warehouse office waiting for
a work-related telephone call. Buckley, who passed
through the office following his break, expressed dis-
pleasure that Moody was able to remain in the office
while Buckley had to return to work. After receiving
the call, Moody returned to the warehouse and com-
menced using a forklift to move product from a loaded
truck into the warehouse while moving product from
the warehouse into an empty truck on the return trip.
Buckley, Bratton, Brunson, and Vaughn were working
together unloading a trailer at an adjacent location in
the warehouse.
In the course of his work, Buckley placed certain
pallets near dock door 46, which was the door where
Moody was unloading product. Bratton, Brunson, and
Vaughn then shuttled the pallets back and forth into
the warehouse. It is undisputed that Moody moved the
pallets away from door 46 and placed them along the
ramp moving up to the dock.7 Moody testified that as
he was moving the pallets, Buckley drove his forklift
truck into Moody’s forklift truck in the middle of the
dock area;8 jumped off the truck; threw his gloves
down; and began walking toward Moody and urging
him to ‘‘back off.’’ In the meantime, Moody testified
that he also jumped off his forklift truck and removed
his gloves, standing at the left-hand side of the truck.
When questioned by the Respondent as to why he did
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not backup his forklift truck after being hit by Buck-
ley’s truck, Moody stated, ‘‘I wasn’t going to get in
a fork truck fight.’’ Although admitting the possibility
that he could have driven away, Moody testified, ‘‘I
feel he [Buckley] already confronted me. I was just—
I was standing up to him.’’ Moody also testified that
he assumed a position to defend himself. Similarly,
employee Starcher, who was an alternate member of
the bargaining committee and union president in 1986,
testified that when Moody was asked by an employer
representative if he could have avoided the fight,
Moody asserted that he does not run away from a
fight.
Moody testified that after he jumped off the truck,
he had his hands at his side and Buckley reached out
and grabbed him by his shirt and coat in straight-arm
fashion. Describing the fight that ensued, Moody testi-
fied that Buckley began running Moody backward in
the direction of an I-beam on the dock, but that he was
able to gain control of Buckley by grabbing his ankle,
flipping him over, and seizing him by the shirt and
collar. Moody recalled that he did not hit Buckley al-
though Buckley urged him to do so. When questioned
at the hearing about his recollection of the events,
Brunson testified that he heard the clang of metal,
looked up, and saw that Buckley’s and Moody’s trucks
were face to face with the forklifts touching the masts.
Brunson further testified that he saw Moody and Buck-
ley walk toward one another and that they grabbed one
another in the chest area ‘‘simultaneously.’’ According
to Brunson, they appeared to be ‘‘wrestling’’ in a
backward direction when Buckley ‘‘got a hold of
[Moody] in a bear hug’’ from the back around his
chest. The next time Brunson looked back, he observed
that Moody flipped Buckley over and pinned him to
the floor. Moody and Brunson both testified that
Bratton persuaded Moody and Buckley to stop fighting
and return to work. Moody stated at the hearing that
he agreed to do so after stating that he did not care
and calling Buckley ‘‘a worthless son-of-a-bitch.’’
Bratton, Brunson, and Vaughn helped Buckley stand
up. It was later established that Buckley had broken
his ankle during the altercation.
Several minutes later Moody asked Buckley for an
apology, but Buckley declined to apologize. Moody
explained at the hearing that he reported the incident
to his supervisor, Elliott, because Buckley’s refusal to
apologize indicated that he was not sorry for his con-
duct ‘‘and probably would just keep continuing on.’’
Elliott reported the matter to Distribution Supervisor
Freeman, who planned to investigate the incident. In
the meantime, Moody experienced discomfort and re-
ceived permission to see the nurse.
Later that day, Freeman met with Moody, Buckley,
and Plesa, the Respondent’s steward. Plesa testified re-
garding what transpired at that meeting. According to
Plesa, Freeman instructed Moody or Buckley to relate
what had happened in the warehouse and, in response,
Moody stated that after he had moved some pallets out
of the way Buckley had attacked him without provo-
cation. At that point, Freeman asked Buckley if that
description was accurate and Buckley acknowledged
its basic accuracy and added that he ‘‘had had a bad
day.’’ Buckley then asked what it would take to re-
solve the matter, and Moody again requested an apol-
ogy. After Moody rejected Buckley’s apology as not
being ‘‘sincere,’’ Buckley got down on his knees and
apologized once again. Although Moody accepted
Buckley’s apology, Freeman stated that it was not that
simple, and that because the incident had been brought
to the attention of management, both Moody and
Buckley would be suspended pending an investigation.
Peterson, the Employer’s supervisor of labor and em-
ployee relations, conducted the investigation for the
Employer. The Employer’s plant work rules provide in
pertinent part:
In the interest of safety and orderly production, it
is necessary that rules and regulations be posted
and maintained. . . . Violation of any work rules
may result in disciplinary action up to and includ-
ing discharge.
1. . . . fighting . . . is prohibited on Company
property. . . .
Additionally, the Respondent has cited the following
relevant provisions of the collective-bargaining agree-
ment between the Respondent and the Employer:
DISCIPLINE AND DISCHARGE
I. In the interest of safety and orderly produc-
tion, it is necessary that proper discipline be
maintained in the Plant. The Management is re-
sponsible for the maintenance of that discipline,
and in the execution of that responsibility must
necessarily have the power to apply appropriate
penalties. In extreme cases the penalty may have
to be discharge from employment, and the Man-
agement has full right to discharge employees in
such cases.
. . . .
VI. Employees shall observe all safety rules
and other reasonable regulations made for proper
discipline and conduct in the plant.
GRIEVANCE HANDLING PROCEDURE
VI. It is understood and agreed that the direc-
tion of the working forces is vested exclusively in
the Company and the Union shall not abridge or
interfere in any way with this right. . . .
169OIL WORKERS LOCAL 5–114 (COLGATE-PALMOLIVE CO.)
9 Peterson and Rosson both testified that Vaughn told them that he did not
witness the start of the fight and that Bratton indicated that Moody and Buck-
ley came together at the same time. According to Peterson, Bratton also stated
that Moody provoked the incident. Peterson testified that Brunson told him
that he did not know who started the fight. According to Rosson, however,
Brunson maintained that Moody and Buckley came together at the same time.
10 Moody testified that he read a prepared statement at the November 12
meeting. Starcher testified that Peterson read from his notes of Moody’s state-
ment, and that Buckley expressed disagreement with several aspects of the
statement regarding the nature of the altercation.
11 Pursuant to the collective-bargaining agreement, management must con-
sult the bargaining committee when it believes that ‘‘discipline so severe as
discharge’’ is required.
12 Buckley accepted the discipline imposed, but Moody filed a grievance,
which was denied at each step preceding arbitration. As indicated, the Board
found that the Respondent violated Sec. 8(b)(1)(A) by refusing to process
Moody’s grievance to arbitration.
13 Teamsters Local 705 (Associated Transport), 209 NLRB 292, 293 (1974),
enfd. sub nom. Kesner v. NLRB, 532 F.2d 1169 (7th Cir. 1976), cert. denied
429 U.S. 983 (1976); and Security Personnel (Church Charity Foundation),
267 NLRB 974, 980 (1983).
14 The Board’s discussion in Mack-Wayne II of the union’s burden occurred
in the context of the particular facts of that case involving the union’s unlaw-
ful refusal to process O’Neill’s grievance concerning his discharge. The stand-
ard set forth is, however, equally applicable to the suspension imposed on
Moody in the instant case.
PLANT SAFETY
II. The Company and the Union agree to co-
operate in eliminating unsafe conditions and un-
safe practices.
Aside from the above provisions, the Employer does
not have an automatic rule setting forth the discipline
to be imposed on participants in a workplace fight. Ac-
cording to Peterson, the Employer examines all the rel-
evant and mitigating circumstances of a fight, includ-
ing who initiated the dispute, to determine the appro-
priate discipline. As part of the investigation, Peterson
interviewed employees Vaughn, Brunson, and Bratton,
as well as Moody, Buckley, Elliott, and Freeman. The
Respondent’s chief steward, Rosson, decided that he
would rely on Plesa’s testimony about the November
4 meeting rather than interview Moody or Buckley.
Rosson did, however, talk with Vaughn, Brunson,
Bratton, and Elliott.9 Throughout the investigation,
Moody maintained that Buckley was the aggressor and
that he was merely acting in self-defense.
Representatives of the Respondent and the Employer
met on November 12 and again on November 18 to
discuss the results of the investigation and the appro-
priate discipline.10 Starcher testified that the Employer
at the November 12 meeting indicated that it was con-
sidering terminating Moody and Buckley.11 According
to Starcher, the Respondent’s representatives made a
plea for leniency based on the Employer’s past prac-
tice, the length of time Moody and Buckley had been
employed, and their work records. Starcher recalled
that the Employer’s officials agreed to consider a less-
er discipline.
Union Steward Rosson was questioned about the
participants’ relative positions at the November 18
meeting. According to Rosson, the Employer listed the
individuals it had interviewed and stated that it had
concluded that Moody and Buckley were ‘‘mutual
combatants.’’ The Employer, according to Rosson, ex-
plained that it considered Moody and Buckley to be
‘‘equally innocent or guilty’’ because either could have
‘‘backed away from the scene.’’ Rosson could not re-
call discussing with the Employer the ‘‘relative posi-
tions’’ of Moody and Buckley or what the eye-
witnesses described, but testified that the Respondent
stated that it had interviewed the same individuals
‘‘and basically received the same information.’’ Those
present at the meeting discussed the only other inci-
dent that the Employer had on file involving a fight
between employees. In this regard, the Employer’s
records indicated that in 1982, employees Ragg and
O’Malley were each given a 4-week disciplinary layoff
and placed on indefinite suspension for ‘‘fighting.’’
Rosson testified that the Employer at the November 18
meeting initially reasserted its position that termination
was appropriate, maintaining that Ragg and O’Malley
were suspended rather than terminated because, unlike
Moody and Buckley, each had been with the Company
for more than 30 years. However, Rosson recalled that
the Employer became receptive to the Respondent’s
contention that a suspension was appropriate because
Buckley had over 20 years of seniority with the Em-
ployer. The Respondent was eventually able to per-
suade the Employer to place both Moody and Buckley
on a 13-week disciplinary layoff with a 2-year proba-
tion. As part of the discipline, Moody and Buckley
were also instructed to seek counseling to improve
their ability to ‘‘work in harmony with your fellow
employees.’’ Rosson testified that the Respondent be-
lieved it had negotiated ‘‘the minimum discipline we
could receive for both employees.’’12
As an initial matter, we disagree with the judge’s
characterization of the Respondent’s burden under
Mack-Wayne II, above, of proving that an employee’s
grievance is not meritorious. In this regard, the cases
cited by the Board at footnote 17 in Mack-Wayne II
and relied on by the judge here 13 must be considered
in conjunction with the Board’s statement in Mack-
Wayne II that where a union has caused the grievance
process to malfunction, a union should assume the bur-
den ‘‘of establishing that the employee’s grievance
would have been denied or that the discharge was jus-
tified.’’ 290 NLRB 817, 819.14 In the instant case we
find, contrary to the judge, that the Respondent met its
burden of proving by a preponderance of the relevant
evidence that Moody’s suspension was justified.
Although Moody contends that he was merely acting
in self-defense against Buckley’s act of aggression, the
evidence suggests otherwise. By his own admission,
Moody was in his truck when Buckley first backed his
truck into Moody’s and began walking toward Moody.
Thus, Moody was separated from Buckley by a signifi-
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 See General Electric Co., 72 LA 441, 444 (1979).
16 As explained by Arbitrator Raymond R. Roberts in Alvey, Inc., 74 LA
835, 838 (1980):
In the absence of mitigating circumstances, fighting is generally re-
garded as an industrial felony. This is true because the Company has an
obligation to maintain a safe working place for its employees. The Com-
pany has a need for a serious penalty as a deterrent to prevent others from
engaging in fighting, which is an overriding consideration of progressive
and corrective discipline. Additionally, a predisposition to hostility of a
serious nature will jeopardize plant safety and made [sic] it unreasonable
for the Employer to continue the employment relationship.
17 To the extent the Employer considered the mitigating circumstances pre-
sented by the Respondent, we agree with the Respondent’s contention that its
degree of representation is relevant to the merits of the grievance.
18 In view of the fact that the circumstances of the fight between Ragg and
O’Malley are not in the record, there is no way to compare their like treatment
with the discipline accorded to Moody vis-a-vis Buckley.
19 We shall amend the judge’s recommended Order and the notice in accord-
ance with our findings.
For the reasons stated in the underlying unfair labor practice case, Member
Cracraft would not have remanded this proceeding and would have found that
the General Counsel did not sustain the burden of showing that Ronald
Moody’s grievance was meritorious. 295 NLRB 742, 744 fn. 8 (1989). She
therefore agrees with her colleagues that Respondent has no backpay liability.
cant distance, and was not in immediate danger of
physical harm. At this point, Moody deliberately chose
not to walk or drive away, but instead jumped down
from his truck and exchanged physical blows and
angry words with Buckley. Moody admitted at the
hearing that he could have avoided the confrontation.
His further testimony that he was just ‘‘standing up to
[Buckley]’’—as well as Starcher’s uncontroverted tes-
timony that Moody asserted that he does not run away
from a fight—demonstrates that Moody was not acting
in a purely self-defensive posture. Rather, it is apparent
that Moody’s motive in fighting with Buckley was, at
least in part, a response to an affront to his pride. The
fact that Moody’s pride may have been at stake is not,
however, a justification for violating the Employer’s
rule against fighting at the workplace.15 Further, al-
though it may be true that Buckley initiated the con-
frontation, Moody responded with a degree of force
and aggression that caused Buckley to sustain a broken
ankle.
The relevant portions of the Employer’s work rules
and its collective-bargaining agreement with the Re-
spondent, cited above, make clear that the Employer
has an interest in ensuring safety in the warehouse.
Any fight between employees disrupts the workplace
and poses a threat to the safety of a company and its
employees, and is therefore viewed with concern by an
employer.16 Specifically, the Employer’s plant work
rules and the collective-bargaining agreement provide
that discharge can be an appropriate penalty for a vio-
lation of the work rules concerning plant safety.
For the above reasons, we find that the Employer
was warranted in concluding that Moody was a ‘‘mu-
tual combatant’’ and that Moody and Buckley should
receive the same punishment. Rather than terminating
them, however, the Employer at the request of the Re-
spondent considered the length of seniority and good
work records of Moody and Buckley and decided that
suspensions were appropriate. An additional mitigating
factor considered by the Employer was its past prac-
tice.17 Ragg and O’Malley, who apparently fought at
the workplace, were placed on suspensions rather than
disciplined. Each of them had worked for the Em-
ployer for 30 years. Thus, we note that Moody re-
ceived discipline that was comparable to—and in the
case of Buckley identical with—employees who had
much greater seniority.18
For the reasons set forth above, we find that the Re-
spondent has met its burden under Mack-Wayne II,
above, of proving that Moody’s discipline was justified
and, therefore, that his grievance was not meritorious.
Accordingly, we reverse the judge to the extent that he
found that the Respondent, having violated Section
8(b)(1)(A), was liable for make-whole relief.19
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3.
‘‘3. The Respondent has met its burden of proving
that Moody’s grievance was not meritorious within the
meaning of Rubber Workers Local 250 (Mack-Wayne),
290 NLRB 817 (1988).’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Oil,
Chemical and Atomic Workers International Union
Local No. 5–114, AFL–CIO, its officers, agents, and
representatives, shall take the action set forth in the
Order as modified.
1. Delete paragraphs 2(b) and (c) and reletter the
subsequent paragraph.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered us to post and abide by this Notice.
WE WILL NOT make statements indicating that we
intend to treat employees differently with regard to
workplace grievances because of their nonunion status.
WE WILL NOT refuse to allow any employee rep-
resented by us to attend a meeting of our members in
order to seek their vote to arbitrate the employee’s
grievance.
171OIL WORKERS LOCAL 5–114 (COLGATE-PALMOLIVE CO.)
1 All dates are 1986, unless otherwise indicated.
2 Moody’s testimony to this effect is consistent with contemporaneous state-
ments which he submitted to Respondent’s membership and the Employer.
The fact that Moody consistently maintained that he was acting in self-defense
was also corroborated by Respondent’s steward, Linda Plesa, and the Employ-
er’s supervisor of labor and employee relations, Brent Peterson.
3 Respondent’s steward, Plesa, credibly so testified. Peterson testified that,
at a subsequent meeting, Buckley was not in complete agreement with every
aspect of Moody’s account of the altercation. Peterson’s testimony on this
point was exceptionally tentative, vague, and unsure, and he was unable to
identify which portions of Moody’s account had been questioned by Buckley.
Accordingly, there is insufficient evidence to conclude that Buckley recanted
his earlier admission that he was the aggressor.
4 Peterson so testified.
5 During the investigation, one of the combatants’ fellow employees Terry
Brunson stated that he did not see who started the fight. At the hearing on
remand, Brunson reversed himself and stated that the combatants came to-
gether simultaneously. Based on my observation of Brunson’s demeanor while
on the stand and in the hearing room, I find that he did not observe the begin-
ning of the fight and that his testimony to the contrary was untrue.
6 Peterson credibly so testified. Ken Bratton, the individual in question, was
in prison at the time of the hearing and did not testify. I find the hearsay ren-
dition of Bratton’s account to be less credible than Buckley’s admission to the
contrary.
7 Union’s brief to the administrative law judge on remand (R. Br. at 7).
8 Peterson so testified.
9 The issue now before me is not how Respondent acted with respect to
Moody or why it did so. Accordingly, this Decision will not address Respond-
ent’s extensive attempts to relitigate the question of whether its conduct was
arbitrary and discriminatory. See R. Br. at 15–16, 26–30, and 33–34.
WE WILL NOT couple the announcement that an em-
ployee has filed a charge against us with the members’
consideration of that employee’s request that a griev-
ance be carried to arbitration.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION LOCAL NO. 5–
114, AFL–CIO
Stephen E. Wamser, Esq., for the General Counsel.
John W. McKendree, Esq., of Denver, Colorado, for the Re-
spondent.
SUPPLEMENTAL DECISION
STEVEN M. CHARNO, Administrative Law Judge. By Deci-
sion and Order entered June 15, 1989, 295 NLRB 472, the
Board held that Respondent’s disparate treatment of Ronald
A. Moody with respect to his grievance was arbitrary and
discriminatory, inherently destructive of important employee
rights and violative of Section 8(b)(1)(A) of the National
Labor Relations Act (Act). The Board further held that cer-
tain statements made by Respondent’s officers to Moody also
violated Section 8(b)(1)(A) of the Act. The Board found that
Moody’s grievance, which arose out of his suspension by
Colgate-Palmolive Company (Employer), was not clearly
frivolous. This finding was based in part on Moody’s testi-
mony that his alleged offense of fighting was an act of self-
defense and on the Employer’s policy of assessing penalties
for fighting only after evaluating all of the circumstances sur-
rounding an incident.
In its Decision and Order, the Board remanded the case
to me and directed me to permit Respondent to elect whether
to present evidence on the merits of Moody’s grievance be-
fore me or at the compliance stage of this proceeding. In re-
sponse to my Order of June 26, 1989, Respondent elected on
July 7, 1989, to present such evidence at a reopened hearing
before me. That hearing was held in Mission, Kansas, on Oc-
tober 12 and 13, 1989. Briefs were submitted by the General
Counsel and Respondent under extended due date of Decem-
ber 5, 1989.
FINDINGS OF FACT
A. The Grievance
On November 4, 1986,1 Moody and Garrett Buckley, one
of Moody’s coworkers, were involved in a fist fight during
working hours at the Employer’s Osage warehouse. At all
times thereafter, Moody maintained that he had merely de-
fended himself against Buckley’s unprovoked aggression.2 At
a meeting between the combatants and representatives of Re-
spondent and the Employer on the day of the fight, Moody
portrayed Buckley as the aggressor and Buckley admitted
that Moody’s account was ‘‘basically’’ correct.3
It is uncontested that the Employer has no automatic rule
concerning the discipline to be meted out to each of the par-
ticipants in a fight. Rather, it was the Employer’s policy to
examine all the circumstances surrounding a fight, including
the identity of the initiator, before imposing discipline on one
or both of the employees.4
The Employer’s investigation of the incident uncovered
only one individual other than the combatants who stated that
he was present at the beginning of the fight,5 and that indi-
vidual informed the Employer that Moody and Buckley en-
gaged in combat simultaneously.6 Because it believed that
Moody might have avoided the encounter by flight, the Em-
ployer ‘‘concluded that both Moody and Buckley were mu-
tual combatants’’7 and assigned the same punishment to each
of them.8
Moody grieved his punishment, and Respondent’s handling
of that grievance was found by the Board to be violative of
the Act as set forth above.
B. Discussion
This case was remanded in order to allow Respondent to
attempt to demonstrate that Moody’s grievance lacks merit
within the meaning of Rubber Workers Local 250 (Mack-
Wayne), 290 NLRB 817 (1988). 9 In that case, the Board
held that a union may offer proof that its discriminatory con-
duct did not injure a grievant by establishing that the griev-
ance was not meritorious. Citing Teamsters Local 705 (Asso-
ciated Transport), 209 NLRB 292 (1974); and Security Per-
sonnel (Church Charity Foundation), 267 NLRB 974 (1983),
General Counsel argues that Respondent must prove that
‘‘there is no way a grievant could prevail in arbitration’’ in
order to establish that Moody’s grievance lacks merit. Re-
view of the cited authorities convinces me that General
Counsel’s argument is sound.
Given the findings set out above and the speculative nature
of the Employer’s rationale that Moody could have ended the
incident by retreating, I find it impossible to conclude that
an arbitrator would necessarily have found that Moody was
a mutual combatant who deserved the same punishment im-
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Because this finding turns on the factual issue of whether Buckley was
the aggressor, Respondent’s reliance on the principles set forth in Hardesty v.
Essex Group, 550 F. Supp. 752 (D. Ind. 1982), is misplaced. Similarly, ques-
tions of whether Moody was a ‘‘full combatant’’ once the fight had begun
and whether Buckley was injured are immaterial to the determinative issue of
who started the fight.
11 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 objec-
tions to them shall be deemed waived for all purposes.
12 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
posed on Buckley.10 Accordingly, I conclude that Respond-
ent has not met its burden of proof.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent has violated Section 8(b)(1)(A) of the Act
as set forth in the Board’s Decision and Order Remanding,
295 NLRB 742 (1989).
3. Respondent has not met its burden of proving that
Moody’s grievance was not meritorious within the meaning
of Rubber Workers Local 250 (Mack-Wayne), 290 NLRB
817 (1988).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Oil, Chemical and Atomic Workers Inter-
national Union Local No. 5–114, AFL–CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Making statements indicating that Respondent intended
to treat employees disparately with regard to workplace
grievances because of their nonunion status.
(b) Refusing to allow any employee represented by it to
attend a meeting of its members in order to seek their vote
to arbitrate the employee’s grievance.
(c) Coupling the announcement that an employee has filed
a charge against it with its members’ consideration of that
employee’s request that a grievance be carried to arbitration.
(d) In any like or related manner restraining or coercing
employees in the exercise of their right to engage in or re-
frain from engaging in the activities guaranteed by Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its business offices, meeting halls, and all other
places where notices to its members and other employees in
the bargaining unit are customarily posted, copies of the at-
tached notice marked ‘‘Appendix.’’12 Copies of the notice,
on forms provided by the Regional Director for Region 17,
after being signed by Respondent’s authorized representative,
shall be posted by the Respondent immediately on receipt
and maintained for 60 consecutive days. Reasonable steps
shall be taken by Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(b) Request that Colgate-Palmolive Company rescind the
3-month suspension issued to Ronald A. Moody and, if it re-
fuses to do so promptly, ask it to consider a grievance over
his suspension and thereafter pursue that grievance in good
faith with all due diligence including, if possible, taking the
grievance to arbitration and permitting Moody to be rep-
resented by his own counsel at such arbitration with Re-
spondent paying the reasonable attorney fees of such counsel.
(c) If unsuccessful in resuming processing of the griev-
ance, make Moody whole, with interest, for any loss of earn-
ings he may have suffered as a result of his suspension by
Colgate-Palmolive Company.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.