Plumbers, Local 60

National Labor Relations Board - Board Decisions

Jun 15, 1979

242 N.L.R.B. 1203 (N.L.R.B. 1979)

PLUMBERS, LOCAL 60
United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United
States and Canada, Local 60 (Buck Kreihs Co.,
Inc.) and Lawrence S. Krantz, Jr. Case 15-CB-
2079
June 15, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On January 24, 1979, Administrative Law Judge
Robert A. Gritta issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Respondent filed exceptions and supporting briefs.
The General Counsel also filed a brief in support of
the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent they are consistent herewith.'
The Administrative Law Judge found that the Re-
spondent violated Section 8(b)(l)(A) of the Act by
representing Krantz. a discharged employee, in a
dilatory and unfair manner. We find merit to the Re-
spondent's exceptions to this finding.
As more fully set forth in the Administrative Law
Judge's Decision, on July 10, 1978,2 Krantz, the only
welder on the job, asked a coworker to tell Foreman
Butch Russo that he was ill and leaving. Russo told
his brother Frank, the superintendent, that he was
disgusted with Krantz and was not going to hire him
again; Frank agreed. Krantz was told this upon re-
porting for work on the evening of July II. Krantz
testified that the following day he went to the union
hall and informed Dominick, the business agent, of
his discharge. However, he was not credited. The
Union did not learn of his grievance until it received
Krantz' letter, mailed July 18, 7 days after his dis-
charge.
Upon receiving the letter, Dominick called Frank
Russo, was told of the reason for the discharge, and
then called Krantz. Dominick and Krantz had a
heated conversation and nothing was resolved. There-
after, Dominick sent Krantz a letter asking him if he
I The Administrative Law Judge. sl. op.. p I. inadvertently dates a con-
versation between Dominick and Krantz as August 8 The correct date is
August 7.
2 All dates are in 1978.
wanted the Union to pursue his grievance. Krantz
contacted Dominick, and Dominick said he would try
to get him reinstated or. failing that. he would try to
get him another job. Krantz replied that he wanted
reinstatement with hackpay. Superintendent Russo
eventually agreed to reinstatement, but would not
agree to backpay.
The Administrative Law Judge found that the Re-
spondent harbored no hostility towards Krantz and
that it did not refuse to represent. process, or accept
any grievance for him and dismissed the complaint
allegations as pleaded by the General Counsel. How-
ever, he found that in settling the grievance short of
backpay the Respondent failed to fully and fairly rep-
resent Krantz. We disagree.
Because Butch Russo was both foreman and stew-
ard, as well as the brother of the superintendent, and
both were also members of the Respondent. the Ad-
ministrative Law Judge required "extraordinar\ pro-
cedures on the part of the Respondent." He posits
that "under the special circumstances of this case the
duty of the Union to act as advocates for the grievant
and the duty of fair representation owed to the bar-
gaining unit employees is greater than that which
normally exists." He concludes that the Union's pro-
cessing of the grievance was dilatory and that "the
Respondent never intended to pursue the backpay is-
sue due to the risk of disturbing what it considered a
good relationship with the company."4
We do not agree that the facts5 in this case required
"extraordinary procedures" by the Respondent. nor
have we found any case support for this conclusion.
But, whether it is good law or bad, it is not applicable
to this case. Krantz never attempted to file a griev-
ance with Butch Russo, the elected steward., but went
directly to Dominick. Russo's position in the griev-
ance procedure is irrelevant.
Nor was there any unreasonable delay by the
Union. Dominick first learned of the grievance from
Krantz' July 18 letter, and he called Krantz and Su-
perintendent Russo when he received the letter. As-
suming it only took a day to deliver the letter, the
earliest the Union was aware of the grievance was
July 19. and probably later. Dominick, following the
telephone conversation. sent Krantz a letter on July
A union's duty) to an emplosee is not analogous to that of an altorne to
a client. Serice Emplhivees International Lnron. Local .No 5' .4FI CIO
(Conracare of Decatur d'h/a Beverl .anor (onialcent CenterL 229 NL RB
692. fn 2 (1977)
We see no reason wh --in the absence of Inmidious considerations It
should be adverse to the unit members' interests to maintain a good relation-
ship with the employer. Hostilit is not the touchstone of good-faith bargain-
ing.
It cannot be said that it is unusual in the constructlion ndustr folr super-
visors to be union members
6 Russo while on vacation, was elected acting steward. lie was not ap-
pointed by the Respondent, as stated In the Administratise Law Judge's
Decision
242 NLRB No. 173
1203
DECISIONS OF NATIONAL I.ABOR REI.A IONS BOARD
26 asking whether he wished to pursure the matter,
Krantz called Dominick on Friday, July 28. By Fri-
day, August 4. Dominick had succeeded in getting
Krantz reinstated and informed Krantz on Monday,
August 7.7 Krantz' reinstatement was secured within
12 working days after the Respondent was informed
of his grievance. That, in the circumstances of this
case, will not support a finding that the Respondent
was dilatory.
The violation is based on the erroneous premise
that two separate grievances are in issue: one involv-
ing reinstatement and the other concerning backpay.
It also requires the assumption that if the Respondent
had been more vigorous, the Company would have
capitulated and not only reinstated Krantz. but
granted backpay, notwithstanding undisputed testi-
mony that the Company had never granted backpay
and saw no reason to do so here.
We view this case as involving nothing more than
the compromise of a grievance over a discharge.
Krantz was reinstated, and the Company made its
point that his conduct, both past and present, would
not be tolerated. That, except for invidious consider-
ations, is not unlawful under the Act. The Adminis-
trative Law Judge found no invidious considerations
nor hostility of any kind. We agree: however, we
would not second guess the Union's good-faith judg-
ment with no assurance that Krantz would have
benefited. An arbitrator might very well have arrived
at the same result, leaving Krantz without a job for
an even longer time or might have rejected his posi-
tion completely. With the exception of the fiction that
Krantz' discharge gave rise to two grievances, there
would not be any basis for finding the Union's action
unlawful. Accordingly, we find that the Respondent
did not violate Section 8(b)(1)(A) and shall dismiss
the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint be, and
hereby is, dismissed in its entirety.
' Krantz asked Dominick for a letter confirming this. However, the letter
was not necessary for him to return to work. This and the fact that Krantz
did not inform the Union of his grievance until, at the earliest. 8 days after
his discharge leads us to conclude that the term "dilatory" is better applied
to Krantz than to the Respondent.
DECISION
STAEMEN OF IHIE CASI
ROBERt A. GRII A, Administrative Law Judge: This case
was heard on September 6, 1978, in New Orleans, Louisi-
ana, based upon a charge filed by Lawrence S. Krantz. Jr.
(herein called Krantz). on July 27, 1978, and a complaint
issued by the Acting Regional Director flr Region 15 of the
National Labor Relations Board on August 22. 1978.1 The
complaint alleges that the United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting In-
dustrv of the United States and Canada. ocal 60 (herein
called Respondent). violated Section 8(b)( I)(A) b refusing
to represent Krantz and/or accept or process an) grievance
protesting Krantz' termination of employment. Respon-
dent's timel answer denied the commission of any unfair
labor practice.
All parties hereto were altfforded ull opportunity to be
heard. to examine and cross-examine witnesses. to intro-
duce evidence. and to argue orally. Brieft were submitted
b (Gieneral counsel and Respondent and have been duly
considered.
I carefully observed the witnesses throughout the hear-
ing. Based upon my observation of the witnesses and their
demeanor and my consideration of the entire record in this
case. I make the following:
FINI)IN(iS ()I FA I
1. J RISI)I(II()N AND SIAtI .S I ABOR O)R(;ANIZA IIt)N
PRI!I.IMINARY ( ()N(I.L SIONS ()I I.ASS
The complaint alleges. Respondent admits, and I find
that Buck Kreihs Company, Inc., is a Louisiana corpora-
tion engaged in the marine repair business in New Orleans.
l.ouisiana. Jurisdiction is not an issue. Buck Kreihs Com-
pany. Inc., in the past 12 months, in the course and conduct
of its business operations purchased and received at its New
Orleans, Louisiana. facility, goods and materials valued in
excess of $50.000 directly from points located outside the
State of Louisiana. I conclude and find that Buck Kreihs
Company. Inc.. is an employer engaged in commerce and in
operations affecting commerce within the meaning of Sec-
tion 2(2). (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I con-
clude that Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
II. IHE AII.E(;il) UNFAIR I.ABOR PRACTICES
A. Facts
Krantz began working for Buck Kreihs Co.. Inc. (the
only company involved in this proceeding) as a welder in
the pipe department in February 1976. He was hired by his
foreman. Anthony "Butch" Russo. to work the evening
shift. The evening shift hours ae 4 p.m. to I a.m. As a
welder in the pipe department. Krantz may either work in
the yard or on a ship at dock-side. Foreman "Butch" Rus-
so, since hiring Krantz. was installed as steward for the pipe
department. Thus. Butch has a dual capacity: Union Stew-
ard and Foreman.
All dates herein are 1978. unless otherwise pecified.
General (Counsel's unopposed motion to correct the record is granted.
with the exception of references in the motion to pages 153 and 165. which
are denied The motion is received n eidence as G.C. Fxh. 5
1204
PLUMBERS. L
The Company hires emplo ees on a dail basis tfr all
departments. either at the yard, or on the jobsite of' the ship
at dock-side. If there is no work available for the men ap-
pearing for hire, the Company sends the men home. There
is no show-up pay for any employees seeking hire. A man
working on a job on a given day may return to that job the
following day unless he is told otherwise by his foreman or
superintendent.
In addition to making an appearance. a prospect can call
the yard to see if there is work available, and likewise the
Company may call employees before the shift to advise
them that there is work available if they want it. There is no
Company rule requiring prospective employees to be avail-
able for work everyday. Any overtime that is necessary for
the completion of a job is strictly voluntary.
If sufficient pipe department employees appear for work
on any given day. the Company. pursuant to the collective-
bargaining agreement, may call the Respondent Union's
hall for pipe welders and pipefitters. All employees in the
Company's pipe department are represented by the Re-
spondent.
The Company has a collective-bargaining agreement
with Respondent Union for the pipe department. and it is
in evidence as Joint Exhibit 5. The collectise-bargaining
agreement in Article XXI, contains a two section, three-step
grievance procedure:
ARTICLE XXI - GRIEVANCE PROCEDURE
Section 1. It is agreed between the Employer and
the Union that disputes or grievances are limited to
matters concerned with the interpretation and applica-
tion of the language of this Agreement.
Section 2. Any such grievance shall be settled in ac-
cordance with the following procedure:
(a) The grievance shall be submitted in writing by
the steward to the foreman or superintendent within
seven (7) days of the alleged infraction. If no satisfac-
tory settlement is reached within five (5) days of the
dispute, then
(b) The written grievance with the foreman's writ-
ten reply will be forwarded by the Union to the desig-
nated representative of the Employer with a copy to
the Manufacturers and Repairers Association. If no
satisfactory settlement is reached between the Employ-
er's designated representative and the Union Business
Agent within ten (10) working days from the date of
receipt of the grievance at this step. then
(c) The Union must submit the written grievance to
the Joint Labor-Management Committee. The Joint
Labor-Management Committee shall be composed of
three (3) representatives from the Manufacturers and
Repairers Association and three (3) representatives
from the Union. In the event that the Joint Committee
is unable to reach a satisfactory settlement within
seven (7) days after receiving the grievance. then the
grievance must be submitted to arbitration no later
than two (2) weeks after the decision of the Joint Com-
mittee.
Article XXI I. of the collective-bargaining agreement con-
cerns arbitration:
1205
,4 R 7(ICLE XXII - . R BI TR.I4 710,N
Section I. In the eent an Employer or the Union
submits a grievance to arbitration, the Arbitration
Board shall be selected according to and shall be gov-
erned by the following procedures:
The Board of Arbitration shall consist of one I)
member selected by the nion and one (I) member
selected by the Employer. In the event that these two
members of the Board of Arbitration ail to agree upon
the disposition of a grievance within three 3) working
days after the grievance has been submitted to them
then at the request of either of the two members of the
Board of Arbitration. the U. S. Mediation and Concili-
ation Service or the American Arbitration Association
shall be requested to submit a list of fise (5) persons
qualified to act as Chairman of the Board. The above
mentioned services shall be utilized alternately com-
mencing with the U. S. Mediation and Conciliation
Service. The Union Representative and the Employer
representative of the Board, after the receipt of said
list, shall each have the right to strike two (2) names
from it in the following manner:
The two representatives shall determine by lot the
order of elimination. and thereafter each shall. in that
order alternately eliminate one name until only one
remains, the fifth or remaining person shall thereupon
be accepted b both the Union and the Employer as
Chairman of the Board of Arbitration for the purpose
of rendering a decision on the grievance for which he is
selected.
The grievance shall be submitted to the Board of
Arbitration and the decision of the majority of the
Board shall be final and binding upon the parties of
this agreement and shall be complied with within five
(5) days after the decision of the Arbitration Board is
rendered, or within such additional time as the Board
may allow. The decision of the Arbitration Board shall
be reduced to writing and be submitted to both the
Employer and the Union. The Arbitration Board shall
in their decision specify whether or not the decision is
retroactive and the effective date thereof.
Section 2. Each party shall bear the expense of its
designated Board member, and the fees and expenses.
if any. of the third Board member shall he borne
equally by both parties. The fees of the third Board
member shall not exceed one hundred dollars ($100.00)
per day.
Although Krantz had worked for the Employer in excess
of 2 years, it was not until May of 1978 that Krantz decided
to join the Union. Pursuant to his application to join the
Union, Krantz began paying the initiation fee of $500.
which is paid at the rate of $1 per day worked. At the time
of this hearing. Krantz had paid approximately $50 on his
initiation fee.
On JulN 10. 1978. Krantz began his shift in the ard
downtown. After several hours he was told by his foreman
"Butch" Russo to join several other pipefitters and helpers
and proceed to the American Hawk. a ship docked uptown.
for a job that had to he worked on that shift. The shipboard
work location for Krantz and the rest of the crew was in the
pump room just forward of the engine room. Krantz and
the crew actually began working on the tanker at approxi-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately 5 p.m. Krantz began preparing his welding equip-
ment and then assisted Rodney Davis, a pipefitter, who was
removing rusty valves with a cutting torch in preparation
for replacement with new valves. Other pipefitters were in
the process of fitting a 12-inch pipe, which Krantz was to
tack in place and thereafter weld to complete the job. The
pump room is hot, and, of course, when using a cutting
torch, the room becomes smoke filled. Several blowers are
supplied by the Company for exhaust and ventilation; how-
ever, at the time, only one blower was in operation. (Al-
though the testimony is not clear on use of blowers, I see no
need to resolve an insignificant factual issue of availability
of other blowers. The record is clear that only one was
operating, and the room was hot and smokey.) After work-
ing for approximately an hour in the pump room, Krantz
became sick, weak, and nauseous. He continued helping
Rodney Davis until approximately 7:30 p.m., at which time
he told Davis that he was not going to be able to continue
working because he was feeling too sick, and he asked Da-
vis to inform the foreman, "Butch" Russo, that he had got-
ten sick and was going home. "Butch" Russo was working
in another section of the ship below decks. Krantz left the
pump room and went up on deck to get some fresh air and
water and stayed on deck for approximately 15 minutes. At
8:25 p.m., Krantz, feeling no better, left the ship, went to
his automobile, and drove home.
When Rodney Davis quit working for lunch at 8:30 p.m.,
he saw "Butch" Russo, the foreman, coming up out of the
number five hold. Davis told Butch that Krantz had gotten
sick in the pump room and had gone home. This communi-
cation from Davis to Butch is acknowledged by all wit-
nesses.
Butch, upon learning that Krantz had left the ship and
had gone home, became angry, since Krantz was his only
welder on the crew. Butch stated to Davis, "Well, I've just
about had it with him, and I feel like I will not hire him
again." Several minutes later, Butch's brother, superinten-
dent Frank Russo, came aboard, and Butch told him that
Krantz had gone home, and he was the only welder he had
in the crew. Butch told Frank, "I really don't want the boy
anymore because-everytime he was worked its either he
has been sick or knocking off because of unknown reasons."
Frank responded, "Well, thats it for him." At this point,
Butch called the yard for another pipewelder to finish the
job on the American Hawk.
The next day, Krantz reported to the yard for work at
approximately 4 p.m., but the pusher, Ritchie Davis, said
that he had been told not to hire Krantz anymore. Pusher
Davis told Krantz that foreman "Butch" Russo had fired
him for going home sick and would not allow him to be
hired in the pipe department anymore. In addition, he told
Krantz that superintendent Frank Russo said he (Krantz)
could not be hired in the boilermaker craft either. Krantz
then went to see the yard superintendent, Jack Wiemann.
Superintendent Wiemann also stated to Krantz that Frank
and Butch had said he was not to be hired. Krantz went
home and later that day called his foreman/steward,
"Butch" Russo. Krantz asked why he was not being hired.
Butch, in response to Krantz, stated that Krantz always
wanted to pick his own jobs and is always going home sick.
Krantz told Butch he was sick and since he was paying on
his book, he was going to take the matter to the union hall.
Butch told Krantz that, "I do whatever I want. I can hire
and fire anybody I want." Krantz repeated that he left the
job because he was sick, and Butch stated, "If you was sick
you could have gone to the doctor." This conversation is
not in dispute, as all witnesses related substantially identi-
cal events and acknowledged that "Butch" was speaking
only a:; Krantz' foreman, not his steward.
The following testimony was disputed. Krantz testified
that the following day he went to the union hall at 8:00 a.m.
At approximately 10 a.m., he saw Thomas L. Dominick,
business agent for the plumbers' Union. Krantz testified
that he relayed the circumstances of his discharge to Mr.
Dominick, who responded by asking Krantz how much he
had paid on his book. Krantz said he paid $30 or $40.
Krantz testified that Dominick said there was nothing he
could do for Krantz, because his book was not paid up.
Krantz then told Dominick that he was going to take his
problems to the Labor Board.
On July 18, Krantz sent a letter to Thomas Dominick, in
which he outlined the circumstances surrounding his termi-
nation and his attempt the following day to rehire with the
Company. (J. Exh. 1.) In the same letter, he also informed
Mr. Dominick that he had been to the union hall and spoke
with a gentleman who informed him that he could not be
helped by the Union because his book was not paid for. He
further informed Mr. Dominick that he was writing to him
on advice of the State Labor Board. He ended his letter by
telling Mr. Dominick, that if he could get no help from the
Union, then he was also referred to the National Labor
Relations Board. Krantz' testimony of this visit to the union
hall was vague, uncertain, and inconsistent with his later
testimony. I do not credit his identification of Dominick as
the person he saw and talked to at the hall. Without an
identification, supporting Agency, the Respondent cannot
be held accountable for what was said to Krantz. if in fact,
the conversation were as Krantz testified.
The same day that Dominick received Krantz' letter of
July 18, he discussed the contents of the letter with Robert
Quinn, business manager of the Local Union. Dominick
told Quinn that Krantz was giving him a "bum deal," as
well as Local Union No. 60, because Dominick did not
recall ever seeing Krantz before. That same day, Dominick
placed a phone call to superintendent Frank Russo. Domi-
nick read Krantz' letter to Frank Russo over the phone,
and, then asked Frank, "What's the deal on this guy any-
way?" Superintendent Russo told Dominick that Krantz
had left the job site without telling anyone, that he had
walked offjobs before, and had had other problems during
the course of his employment. Dominick then admonished
the superintendent with, "Frank, remember what you told
me right now, because you may have to repeat it later on."
After speaking with superintendent Russo, Dominick then
called Krantz to discuss the circumstances surrounding
Krantz' termination. Krantz said, "You're calling me now
because you got my letter about the Labor Board." Domi-
nick related to Krantz what superintendent Russo had said
about Krantz leaving jobs early and having done that be-
fore without telling anyone he was leaving. Krantz denied
that, stating to Dominick that he had become sick before
leaving the job and had asked another employee (Rodney
Davis) to tell the foreman he was leaving. Dominick pur-
1206
PLUMBERS, LOCAL 60
sued the story related to him by superintendent Russo, and
Krantz stated to l)ominick. "You only want to hear one
side of' the story." Domiinick replied. "lI'm just telling ou
my side, what I heard from I-rank Russo. because I'm not
on the job." Several heated words were exchanged and
Dominick told Krantz to take his best shot at getting hisjob
back, thereby ending the conversation. Neither Krantz nor
Dominick could fix the date and time of the conversation,
but both substantially agreed on what wais said.
On July 26, Dominick sent a letter to Krantz on Union
stationary. (J. Exh. 2) In the letter, Dominick restates the
Company's position on Krantz' dismissal and again offers
Local 60's help in Krantz' present situation. Donlinick
ended the letter by suggesting Krantz call him it he wanted
to pursue the matter further.
On July 28, Krantz called Dominick. In the course of the
conversation, I)ominick said he would do everything he
could to get Krantz' job back. Krantz asked about anx
backpay, and D)ominick stated that he didn't know about
that now, but Krantz should call him in a couple of days.
On August 4, Superintendent Frank Russo told Domi-
nick that the Company would put Krantz back to work. but
would not agree to backpay. (The memorandum. J. Exh. 3.
although self-serving and warranting little weight. I find
does establish the date Dominick was told the Compan
would reinstate Krantz.)
Krantz placed another call to Dominick on August 7. In
the conversation, Dominick stated that he had talked to
superintendent Frank Russo, who had indicated that
Krantz could have his job back, but without backpax.
Krantz asked Dominick if he would send him a letter to
that effect that he could take to the Companx . and Doni-
nick stated that he would do so. Although Dominick testi-
fied and his several letters refer to reinstatement when work
is available. Frank Russo in his deposition imposed no such
limitation on Krantz' reinstatement. I discredit Dominick
in this regard mainly on the basis of plausibility and on
Russo's statement on rehiring, which is credible and is ex-
plained in Respondent's Exhibit I.
A letter dated August 17 and addressed to Mr. Krantz
from Mr. Dominick, states that superintendent Frank Rus-
so has agreed to reinstate Mr. Krantz to his former position
when, and if, work was available: but there would be no
backpay. (Jt. Exh. 4.)
Krantz called the hall to inquire about the letter Domi-
nick had promised him and was told that the letter had
been mailed, but was returned to the union hall and had to
be remailed. (The returned letter was not produced at the
trial.) Krantz then suggested he might come b the union
hall and pick up the letter, and that was agreed to by Domi-
nick. Krantz did so on Friday, August 18.
On Monday, August 21. Krantz appeared at the hiring
yard with the letter, and presented it to pusher Ritchie Da-
vis. Pusher Davis called superintendent Frank Russo. and
told him that Krantz had reported for work. The superin-
tendent stated he wanted to speak to Krantz on the phone.
The superintendent told Krantz that he would rehire him.
but Krantz had to promise to come uptown when he was
called to come and do what they would ask him to do.
Krantz agreed and was put back to work. Krantz has not
received back pay for the time he was out of work.
B. Dicu.i.von and (onclusions
I'he complaint alleged that Respondent filed to repre-
sent. accept. or process any grievance of Lay rence Krantz.
and thereafter failed and refused. and continues to fail and
refuse, to represent. accept, or process any such grievance
because of Krantz' lack of membership in Respondent or
because Krantz had not lull 5 paid for his membership book
in Respondent. Respondent's answer denies the allegations
in the complaint and contends that at all times Respon-
dent's agent igorously represented Krantz b seeking to
obtain his reinstatement and anx backpa\
At the hearing of the case and in its brief. General Coun-
sel argued that Respondent's efforts to represent Krantz in
his rievance did not meet the standards required by the
Board in that the Respondent through Tholmas )ominick.
did not make a full investigation and evaluation of Krantz'
grievances or complaint. Respondent. at the trial of the case
aind in its brief: defended its representation of Krantz and
its processing of Krantz' grievance.
The issues presented here are whether Respondent failed
to represent or refused to accept or process a grievance of a
member based on impermissible union considerations or
whether the manner and means employed b the Respon-
dent in representing its member in processing the grievance
meets the standards necessary to fulfill the statutory dut of
tair representation.
For the purpose of defending the Company's action in
terminating Krantz. Respondent presented several argu-
ments dealing with Krantz: his work habits prior to his
termination: the circumstances of Krantz' leaving the job-
site: and the testimony of Butch Russo to the effect that
Krantz had stated just prior to leaving that he was not
getting in the dirty bilge of the ship. American Hawk. I
have not considered those arguments because theN neither
relate to the issues that are before me for resolution nor are
they subject to at review at this time. I have considered all
credible evidence dealing with Respondent's action and
conduct as it relates to events subsequent to Krantz' termi-
nation.
It is well established that a Union which enjoys the status
of exclusive collective bargaining representative has an ob-
ligation to represent all employees fairly, in good faith. and
without discrimination against an, of them for reasons that
are arbitrary. irrelevant. or invidious. Vaca er al. v. Sipes.
386 U.S. 171 (1967): Miranda Fuel Conmpan. Inc., 140
NLRB 181 (1962). This obligation is impressed as a duty
upon the representative toward all members of the bargain-
ing unit. A Union breaches this duty when it arbitrarily
ignores a grievance or processes it in a perfunctory fashion.
However, so long as the Union exercises its discretion in
good ilith and honestly a collective bargaining representa-
tive 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 han-
dling are insufficient to establish a breach of the duty of fair
representation. F;)rd M1otor (Cotapanv v. Hut/Jinman, 345 U.S.
330 (1953): King Soopers, In.., 222 NLRB 1011 (1976). The
dut3 thus impressed upon the collective bargaining repre-
sent.ative however. does not end there. A Union may. in
attempting to fulfill this duty, take action that is so unrea-
sonable it becomes arbitrary and contrary to the fiduciary
1207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obligations inherent in the duty owed to the employees in
the bargaining unit, thereb? violating Section 8(b)(1)(A).
Allen L. Griffin v. International Union. United A utlothile,
A erospace and .,4gricultural Implements Workers of A nerica,
UA W. 469 F.2d 181 (4th Cir. 1972): United Steel Workers
of A merica, Local 8093, AFL (C10- CLC (Kennecott Copper
Corporation Bay Mines Division), 225 NLRB 802 (1976).
There is no credible evidence in the record that Respon-
dent refused to represent Mr. Krantz or that Respondent
refused to accept or process any grievance of Krantz be-
cause of Union considerations. The record discloses that
Respondent did, in fact, represent Krantz by accepting and
processing his grievance and did so without regard to his
lack of full membership in the Respondent Union. Since it
does not appear that Respondent's actions were based upon
Union considerations, I conclude that Respondent did not
violate the Act, as pleaded by General Counsel, and recom-
mend that the allegation be dismissed. However. the case
does not end here.
The record does disclose that Respondent was dilatory
and less than fair in its representation of Krantz. Respon-
dent argues that the good relationship between the Com-
pany and the Union has permitted speedy and informal
processing and resolution of grievances without putting the
contract machinery into motion. In this case, the Respon-
dent Union did undertake to process Krantz' grievance and
did so on an informal basis. Although the Respondent's
history with the Company and the policy it follows in griev-
ance handling negates the use of the contract procedure, the
thrust of the contract terms cannot be overlooked. In addi-
tion, the duty impressed by the statute pertains to informal
processes as well as formal.
Any breach of Respondent's duty of fair representation
must be found in the manner in which the grievance was
processed, if it is to be found at all. Both General Counsel
and Respondent recognize the duty of Respondent differing
only as to whether Respondent's fulfillment of that duty
was realized. Respondent states, "There is a violation of the
duty whenever a Union fails to fully and fairly advocate an
employee's grievance, despite the fact that the grievance
actually lacks merit. Kesner v. N.L.R.B., 92 LRRM 2137
(7th Cir. 1976). The Union's failure to fully investigate and
evaluate the merits of an employee's claim will also violate
the Act. Ruzicka v. General Motors Corp., 523 F.2d 306 (6th
Cir. 1975)." (See Br. of Resp.. p. 7.)
The Board has found that a union representative had
abdicated its duty by not presenting grievances in the light
most favorable to the employee. The Board observes that
once Respondent undertakes to present an employee's
grievance, it is obligated to represent him fulli and fair6l.
This obligation includes the affirmative duty to act as advo-
cate for the grievant. Truck Drivers, Oil Drivers and Filling
Station and Platform Workers Local No. 705 International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Associated Transport, Inc.). 209 N LRB
292 (1974); Brown Transport Corp., 239 NLRB 711 (1978). 1
conclude that under the special circumstances of this case.
the duty of the Union to act as advocate for the grievant
and the duty of fair representation owed to the bargaining
employees is greater than that which normally exists. I base
this upon the fact that the Union negotiated a contract term
respecting handling of grievances that specifically require
the steward to submit a written grievance to the foreman or
superintendent within 7 days of the alleged infraction. The
foreman is to answer the grievance with a written reply
within 5 days of the dispute. The record evinces that the
foreman and steward suggested in the contract procedure
are one and the same individual. Additionally. the superin-
tendent suggested in the same contract procedure is the
brother of the foreman just mentioned. Furthermore, both
the foreman and the superintendent are members of Re-
spondent. The contract machinery is incapable of resolving
grievances in the pipe department where Butch Russo is the
foreman as well as the steward, because it would be ridicu-
lous to assume that a single individual could "wear two
hats" alternatively or at the same time and objectively per-
form as representative to opposing parties. Cf.. ITT Arctic
Services Inc.. 238 NLRB 116 (1978). This is not a case of
negligence or ineptitude that can be excused, but rather is
the result of affirmative conscious acts of Respondent, for
Respondent from inception. had the facts in dispute before
it. Assuming, arguendo, the Respondent's election to handle
the grievance informally under the dual function that ex-
isted for the pipe steward and the pipe foreman requires
extraordinary procedures on the part of an agent of Re-
spondent. Thomas Dominick proceeded with the grievance
in a fashion considerably short of extraordinary. With this
regard, I note particularly the hiatus between the July 18th
(approximately) phone call between Dominick and Krantz.
and Dominick's response to Krantz on July 26 (approxi-
mately), which even then was indirect. Also important is
the hiatus between the date of the Company's willingness to
reinstate Krantz (August 4), and the communication of
Dominick to Krantz of that information (August 8). To
further stretch the passage of time to unreasonable lengths,
it was not until August 17th that Dominick fulfilled his
promise to Krantz and prepared the letter. Even after prep-
aration, Krantz had to visit the union hall to pick up the
letter to get his reinstatement.
A cursory perusal of the record will disclose that had
Respondent proceeded with dispatch to process the griev-
ance, little or no back pay would have been in issue. This is
further supported by the reinstatement that ultimately was
effectuated.
Respondent argues that the reinstatement effected by
Dominick shows complete satisfaction of its duty to repre-
sent. However, reinstatement was accomplished at a time
well distant from what it could have been and with an atti-
tude on the part of Respondent that evinces the opposite of
advocacy: e.g.. Dominick never confronted the Company
with Krantz' charge that he did not leave the job site with-
out telling management, but rather confronted Krantz with
the Company's charge that his departure was unauthorized.
This contrariness on the part of Dominick came after hav-
ing been given the facts as Krantz knew them and with
knowledge of corroboration by a disinterested employee. In
contrast to the negative approach by Dominick. any other
agent would have investigated the respective stories and
found (at least arguably) that the Company's position on
back pay was tenuous. Any continuation of the Company's
stance on back pay then obviously would justify arbitration
as the only alternative. I conclude that reinstatement not-
withstanding, the Respondent Union is not absolved of the
duty to pursue the question of back pay to arbitration if
1208
PLUMBERS, LOCAL 60
negotiations fail. M' conclusion acknowledges the absence
in the record that the Union made any decision on the
merit of the grievance either before or after effectuating
reinstatement. and even if such a decision was made. it was
neither recorded nor communicated to Krantz. Assuming.
arguendo. that if Respondent had made a decision not to
pursue the matter to arbitration. such a decision would not
have been supported b) a full or even reasonable investiga-
tion as the record now stands. Accordingly. I find that Re-
spondent never intended to pursue the hack pay issue be-
cause of the risk of disturbing what it considered a good
relationship with the Company. Such intent is indicative of
a failure to fulls and fairly represent unit employees.
Respondent's argument that Krantz' acceptance of the
reinstatement is tantamount to acquiesence and satisfaction
of the grievance is best answered by the lack of withdrawal
of the charge filed almost a month before the reinstatement.
In accord with my previous conclusions and findings. I
find that by failing to fully and fairly represent Krantz and
pursue his grievance to arbitration, if necessary. Respon-
dent has violated Section 8(b)( 1 (A) of the Act.
Furthermore. I conclude that the grievant. Krantz. is not
accountable for having failed to file or cause to be filed a
written grievance as required by the contract. Krantz is ab-
solved of any tardiness due to the ambivalence created by
Respondent in appointing the foreman of the pipe shop as
the acting steward for the pipe department. Such appoint-
ment has the effect of voiding, ah initio. any grievance a
pipe department employee may have.
THE REMIli)Y
Having found that Respondent has engaged in an unfair
labor practice within the meaning of Section 8(b)( I )(A) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It is not function of the Board to decide the merits of a
grievance in determining whether the processing of a griev-
ance was in violation of the Act. It is sufficient to determine
from the record that the grievance was not "clearly frivo-
lous." Buffalo Newspaper Guild, Local 26, American News-
paper Guild, A4FL-CIO-CLC (Buffalo Courier - E.press
Inc.) 220 NLRB 79 (1975).
In this instance, a difficult problem is presented in devis-
ing an appropriate and adequate remedy. The fact that
Krantz was reinstated by the Company militates against
any remedy requiring Respondent to continue processing
the grievance or to seek arbitration. The contractual griev-
ance procedure calls for a joint labor management commit-
tee composed of three (3) employer representatives from the
Manufacturers and Repairers Association. None of the
committee would be from the Company nor could they
have been a party to this cause of action. If Respondent
were to fail at this stage of the process, the alternative
would be arbitration.
The initial Board of Arbitration would have a Company
representative, but in the event of disagreement. the Board
selects a professional arbitrator as chairman to break the
deadlock and compose a binding decision.
It would be inequitable and intolerable to place the Com-
pany in a position of arguing before its association mem-
bers (and possibly an arbitrator) that the greivant should
not have been reinstated voluntarily and should not receive
any backpay. Clearly. it would not be in the best interest of
the Company to accede to any request for further grievance
processing by Respondent, whether pursuant to an Order or
not. It appears that issuance of such an Order could only be
an exercise in futility.
Part of the original grievance has been voluntarily deter-
mined, and except for the Respondent's unlawful action.
there would be no uncertainty relative to determining
monetary responsibility. It therefore is proper to resolve the
question in favor of the injured employee and not the
wrongdoer. P.P.G. Industries Incorporated, 229 NLRB 713
( 1977). Accordingly. for the purposes of remedy, I shall pre-
sume that if fully and fairly processed. Krantz' grievance
would have been found meritorious and that he would have
been reinstated with back pay. Massachusetts Laborers' Dis-
trict Council of/' the Laborers' International Union of North
America. Manganaro AMasonry Co., Inc. 230 NLRB 640
(1977).
Resondent's backpay liability is limited to the loss
Krantz suffered as a result of Respondent's failure to fully
and fairly process his grievance. The grievance is now time-
barred both b the contract language and the prior infor-
mal handling b Respondent. Neither Respondent nor the
Company is in a position to impartially decide the issue of
backpay. Accordingly I shall recommend that Respondent
make Krantz 'whole for any loss of earnings he may have
suffered as a result of his termination from the date of ter-
mination until he was reinstated voluntarily. United Steel-
workers of Aerica, A.FL-CIO (Interroqval Corp.). 223
NLRB 1184 (1976): Massachusetts Laborers District Coun-
cil of the Laborers International l 'nion of North America,
supra. Back pay and interest thereon shall be computed in
accord with the formula prescribed in F W. Woolworth
Compain, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977).'
ADDITIONAl. CONCLUSIONS OF LAW
I. By failing to fully and fairly represent Krantz and pur-
sue his grievance to arbitration, if necessary., Respondent
has restrained and coerced Krantz in the exercise of rights
guaranteed in Section 7 of the Act. and thereby violated
Section 8(b)( 1)(A) of the Act.
2. The aforesaid unfair labor practice, occurring in con-
nection with the operations of Buck Kreihs Company. has a
close. intimate and substantial relation to trade, traffic. and
commerce among several States and tends to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce. It thus affects commerce within the
meaning of Section 2(6) and (7) of the Act.
3. Respondent has not committed any unfair labor prac-
tices not specifically found herein.4
[Recommended Order omitted from publication.]
See. generally lis Plumbing & Heating Co.. 138 NLRB 716 (1962).
' It is not appropriate on this record to interfere with Respondent's selec-
tion o a steward. However. under other circumstances. I would find a super-
visor's selection as the steward an additional violation.
1209