PPG Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1290 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PPG Industries, Inc.' and Frank R. King
Brotherhood of Paint, Varnish and Lacquer Makers
Local No. 579, affiliated with the International
Union of Painters and Allied Trades Union, AFL-
CI02 and Frank R. King. Cases 30-CA-4680 and
30-CB- 1286
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On May 29, 1979, Administrative Law Judge Mel-
vin J. Welles issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions3 and a supporting brief, Respondent Union filed
cross-exceptions and a supporting brief, and Respon-
dent PPG filed a brief in support of the Administra-
tive Law Judge's 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, 4 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
Herein called Respondent PPG.
' Herein call Respondent Union.
Following the issuance of the Administrative Law Judge's Decision and
prior to the filing of exceptions, the General Counsel moved the Board to
remand the instant case to the Administrative Law Judge and reopen the
record. The General Counsel sought thereby to introduce certain pleadings
filed by Respondent PPG in a Wisconsin unemployment compensation pro-
ceeding involving Frank R. King, the Charging Party herein. By direction of
the Board, the General Counsel's motion was denied by Order dated July 20,
1979. In his exceptions, the General Counsel renews his motion and requests,
in the alternative, the issuance by the Board of a Notice To Show Cause as
to why the pleadings in the unemployment compensation proceeding should
not be accepted as part of the record in the instant case. For the reasons
stated in the July 20, 1979. Order, the General Counsel's motion and request
for a Notice To Show Cause are denied.
IThe General Counsel has excepted inferentially to certain credibility
findings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with respect
to credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings,
ders that the complaint be, and it hereby is, dismissed
in its entirety.
DECISION
STATEMENT OF TlHE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Milwaukee. Wisconsin, on September 27,
1978, based on charges filed March 27 and May 1, 1978,
and a complaint issued May 30, 1978, alleging that Respon-
dent Employer violated Section 8(a)(5) and (I) of the Act,
and that Respondent Union violated Section 8(b)(1)(A) of
the Act. The General Counsel, the Employer, and the
Union have filed briefs.'
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE L.ABOR
ORGANIZATION INVOLVED
PPG Industries, Inc., herein called the Company, is a
Pennsylvania corporation engaged in a variety of manufac-
turing enterprises, with its headquarters at Pittsburgh,
Pennsylvania, and with production facilities at various loca-
tions, including the one at Oak Creek, Wisconsin, herein
involved. During the calendar year preceding the hearing
herein, the Company shipped goods valued in excess of
$50,000 from its Wisconsin location to points located out-
side the State of Wisconsin. I find, as the Company admits,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. I also find, as
the Union admits, that it is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The CA Case-Facts
The Company and the Union have had continuous con-
tractual relationships for more than 40 years. Article VII,
section 3, of their 1978 contract provides, in pertinent part:
The Company agrees that where it becomes necessary
to discharge or suspend an employee, such employee
and the Union shall be given the reason therefore in writ-
ing. Such notification shall be given no later than the
next working day. Where it becomes necessary to dis-
charge or suspend an employee the individual will be in-
formed of his right to union representation. The employee
will be informed that unless a grievance is filed in writ-
ing with the Company within 48 hours (exclusive of
Saturdays, Sundays, or holidays) after such suspension
or discharge, the particular case will be considered as
closed.
Earlier versions of this provision differed in certain re-
spects from the 1978 provision. In 1948, the comparable
provision read:
I The General Counsel's motion to strike certain portions of Respondent
Union's brief is hereby denied. The factual basis for my conclusions in this
case will of course be based upon the record, and not on statements in a
bnef, or in the General Counsel's motion.
245 NLRB No. 166
1290
PPG INDUSTRIES, INC.
The Company retains the right to select and discharge
its employees, but any discharged employee or his rep-
resentative will, upon request, be advised in writing of
the reason for his discharge or layoff. The Company's
decision in such matters becomes final if not appealed
in writing within 48 hours.
In the 1959 contract, the provision read:
The Company agrees that where it becomes necessary
to discharge or suspend an employee, that such em-
ployee shall at the time of his discharge or suspension
be given the reason therefore in writing and be in-
formed that unless a complaint is filed in writing with
the Company within 48 hours after such suspension or
discharge, the particular case will be considered as
closed.
And in the 1968 contract, which in this respect remained
unchanged until 1978, through four successive intervening
contracts, the provision read:
The Company agrees that where it becomes necessary
to discharge or suspend an employee, that such em-
ployee shall at the time of his discharge or suspension
be given the reason therefore in writing and be in-
formed that unless a complaint is filed in-writing with
the Company within 48 hours (exclusive of Saturdays,
Sundays, or holidays) after such suspension or dis-
charge, the particular case will be considered as closed.
On March 8, 1978, the Company rejected a grievance
which the Union was seeking to file on behalf of employee
Frank King on the ground that it was untimely. The Com-
pany took the view that the current article VII, section 3, of
its contract requires that grievances be filed within 48 hours
of a suspension or discharge. The General Counsel con-
tends that this article gives an employee 48 hours from re-
ceipt of written notice of his discharge in which to file a
grievance, and that the employer unilaterally modified this
requirement by taking the position it did with respect to
King's grievance. Although there is a dispute as to whether
King had 48 hours in which to file, this factual dispute has
no relevance to the case against the Company. It will be
discussed below with respect to the "CB" case.
B. The CA Case-Discussion
The General Counsel's contention that the Company vio-
lated Section 8(aX5) rests on his reading of the contractual
provision in question as providing for a 48 hour period for a
suspended or discharged employee to grieve, starting with
the time he receives notification in writing of the reasons for
the action taken. For reasons stated below, I do not agree
either with his construction of the contract, or that there
was a violation of Section 8(aX5) here, even based on the
General Counsel's construction of the contract.
The plain language of the provision contains two sepa-
rate time periods. The first gives the Company 24 hours
following a suspension or discharge to give written notifica-
tion to the employee affected of the reasons for the action.
The second gives the employee 48 hours from "the suspen-
sion or discharge" to file a grievance. There is absolutely no
ambiguity in this language. It would require substituting
the words "from the written notice" for the words "from the
suspension or discharge" to reach the General Counsel's
construction, a feat of legal legerdemain I am not inclinded
to undertake.
The General Counsel argues that past contracts and past
practices gave employees 48 hours from written notification
of the reasons for a discharge to file grievances. These past
contracts, however, provided that the written notification
be given to the employee at the time of the suspension or
discharge, so that the 48 hours was, contractually speaking,
running from the time of the discharge and the notification
in writing. But the 48 hour period in all the other contracts
started with the discharge. The new contract's provision
alters the modus operandi in only one way; it gives the Com-
pany 24 hours to give the employee, in writing, the reason
for the suspension or discharge. It is true that the employee
thus has one day rather than two following the receipt of
the written notification in which to file a grievance, but he
has the same two days from the time he is suspended or
discharged. The parties could have provided that an em-
ployee has 48 hours from written notification, thus giving
him 72 hours from the time he is suspended or discharged.
But they did not do so. It may well be that the parties did
not intend to cut down the employees' time vis-a-vis the
written notice. And it also may well be that the language in
the 1978 provision was carried over without much
thought-almost by misadventure. These possibilities, how-
ever, are no substitute for evidence and cannot justify, no
matter what the equities, altering the provisions' plain lan-
guage.
The General Counsel points to a number of grievances
filed under the preceding (1976) contract where the Com-
pany accepted filings even later than 48 hours following a
discharge. These five grievances were all filed at the same
time and arose out of the same transaction, so they really
constitute only one situation in terms of "past practice."
Furthermore, the 1976 agreement required the reason in
writing to be given to the employee at the time of the dis-
charge. As noted earlier, this gave the employee concerned
48 hours from the discharge, and also since the 2 were to
coincide, 48 hours from the reason in writing being received
by the employee. The testimony does not establish, in any
event, that any of the employees concerned was even aware
of his discharge before receiving the written notification.
And even a one time waiver of the 48 hour rule, if such it
was, does not mean that the Company was forever after
bound to accord employees more time than the contract
provided.
Indeed, even were I to agree with the General Counsel's
reading of the contract, I would dismiss the 8(a)(5) allega-
tion herein. It is not a violation of the National Labor Rela-
tions Act for a Company to take a position with regard to
the interpretation of its collective bargaining agreement in a
particular respect. Otherwise, every lost arbitration and ev-
ery discharge found by an arbitrator not to be "for cause"
under a contract, would be a unilateral change and a viola-
tion of Section 8(a(5). Where, as here, the Company's in-
terpretation at its very worst, from its standpoint, must be
characterized as at least tenable, no possible violation of the
Act exists.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The CB Case-Facts
Frank King's last day at work for the Company was Fri-
day, March 3, 1978.2 Some time between noon and 1 p.m.
on Monday, March 6, King called the plant to inquire
about his status. According to King. he spoke with Adella
Fleck, personnel assistant to Ketterer, to ask her if anybody
called his apartment that day. She "put the telephone
down, to see if she could get ahold of him," and when she
came back said "a registered letter is on its way," and hung
up. The next day, March 7, he received the letter, dated
March 6. and stating: "This is to advise you that your em-
ployment with PPG Industries is terminated for violation of
plant rules. Unless a complaint is filed in writing with the
union within forty-eight hours, this case will be considered
closed." Fleck confirmed that King called and asked to talk
to Ketterer about the status of his employment. She put
him on hold in order to speak with Ketterer. Ketterer told
her to tell King that his termination letter had gone in the
mail that morning, and she did so. King then protested his
innocence. He said that he had not "threatened Mr. Kas-
chel," and when he began giving "other details," Fleck told
him she could not do any more for him, and that he
"should see the union."
On Wednesday, March 8, King came to the plant shortly
before 4 p.m., and handed copies of a grievance to both
Ketterer and Union representatives Morbec and Blake.3
Morbec told Blake to "get on it right away." Almost imme-
diately thereafter, according to King, Morbec and Blake
spoke with Ketterer. Blake said to Ketterer that the griev-
ance was on time, that "Hank made it, Ken." Ketterer said
it was not, and that King had called and begged for his job
back. Blake and Morbec then went to the lockerroom and
saw Sheehan. Either Blake or Morbec told Sheehan that
King was "out there and he's got this grievance." Sheehan
just said "oh shit."
According to King, Sheehan then went to Ketterer. Ket-
terer told Sheehan that King "called up and I begged for
my job back. And that my grievance was not on time, and
that I was told on the phone that I was definitely fired.
Then King spoke to Blake, who said to King, Well, you
heard him, you heard Ken, you're-you called up and
begged for your job back. And I said, I did no such thing. I
never . . . asked for my job back. Blake said; Well you
called, didn't you. So, I proceeded outside with them and I
told them that it was not true. I never begged for my job
2 King had been suspended on that date. Contrary to the General Coun-
sel's position in its motion to strike portions of the Union's bnef. the record
shows that Company employee relations manager Kenneth Ketterer told
Union treasurer Rudolph Morbec and Union secretary William Blake, on
March 8, that "there's a 48 hour time element involved in this, from the time
of the gentleman's suspension. And his suspension was of Friday at 3:00. . ."
(based on Morbec's uncontradicted testimony). Union President Patrick
Sheehan also testified that King had been suspended on March 3. And King
himself indicated that his last day on the job was March 3. and that he called
the plant on Monday. March 6, as detailed below, to ask his status. Sheehan
and Morbec were not only Union officials, they were regular plant employ-
ees, and there is no reason to believe that they would not have known of the
suspension at the time it occurred.
There was some confusion about these documents, which was never quite
resolved at the hearing, although the nonresolution is not significant King
testified that he wrote out the document over the weekend with the help of
"a college guy." He said he "had a feeling" he would be terminated.
back." King continued to protest outside in the parking lot,
telling Blake and Morbec that he "did not call up out there
and ask for my job back. And they ought to handle my
grievance. And Blake says that case is closed because . . .
my grievance was late. And I begged for my job back."
Morbec testified that he did accept King's grievance at
first, being "under the impression that there was . . . a 48
hour time limit from the time he was given notice of his
discharge or suspension." He added that when Sheehan
brought his contract book over, which said "48 hours from
the time of discharge or suspension," he changed his mind.
Blake confirmed this. Morbec also confirmed in large part
the conversation he and Blake had with Ketterer that King
overheard. His testimony was that Ketterer told them the
grievance was untimely-that "there's a 48 hour time ele-
ment involved in this, from the time of the gentleman's
suspension. And his suspension was as of Friday at 3:00."
Sheehan testified that he did not have any conversation
with Ketterer on March 8 with respect to King's grievance,
but that when Morbec and Blake finished speaking with
him in the locker room, they went out and spoke with Ket-
terer. Sheehan testified, when asked his interpretation about
the timeliness of King's grievance, that when the 48 hours
started was on March 3rd when Mr. Frank King was sus-
pended prior to notification by the Company of his dis-
charge."
D. The CB Case-Discussion
The General Counsel contends that a violation should be
found against the Union without regard to (I) whether the
Company violated Section 8(a)(5), or (2) whether the Gen-
eral Counsel's reading of the contractual provision is cor-
rect, or (3) whether King was told by Fleck that he had
been discharged. All this is so, asserts the General Counsel,
because "there is absolutely no evidence that the Union
knew on March 8 that King had spoken to Fleck on March
6 ... nor ... that the Union knew on March 8 that King
was told that he was discharged or suspended on March 3."
Accordingly, argues the General Counsel, even if the griev-
ance was untimely filed, the Union's lack of knowledge of
the facts in this respect, coupled with the failure of its offi-
cials even to investigate, establishes a violation of the Act.
As the General Counsel vividly puts it, when Ketterer said
that the grievance was not timely, "the Union blithely ac-
cepted it, fell over and played dead.... It is this total,
unqualified acceptance of the Employer's story and com-
plete disregard for King that proves the Union's perfunc-
tory handling of King's grievance."
The General Counsel points out that although "simple
negligence, poor judgment or ineptitude are not sufficient to
establish a breach of duty of fair representation . . . how-
ever, the Union's conduct with respect to King's grievance
was so unreasonable and perfunctory as to be arbitrary,
capricious, and contrary to its fiduciary obligations." In
short, asserts the General Counsel, the Union, by accepting
"at face value the evidence presented by the Employer....
abdicated its responsibility to the discharged employee.
Despite the General Counsel's view that a violation is
made out even if King's grievance was in fact untimely, I
1292
PPG INDUSTRIES IN(C.
shall resolve the credibility conflict between Fleck and
King, just as I have already resolved the contractual con-
struction question. For, had the contract clearly and unam-
biguously given King 48 hours from the written notice to file
a grievance, or had King not been notified of his discharge
at all until March 7, 1 am certain that the General Counsel
would be arguing, and with justification, that a violation of
the Union's duty of fair representation would be clearly
established by its conduct here.4
I conclude that King was in fact notified of his discharge
shortly before I p.m. on March 6. There was no particular
reason for the Company witnesses to dissemble with respect
to the incidents of March 6 or 8, as the only unfair labor
practice alleged against the Company was a "unilateral
change," and whether or not the facts made the grievance
timely does not affect the Company's position regarding the
meaning of the contract. Furthermore, it is highly unlikely
that King, who was on suspended status, and was calling to
inquire about his status, would be satisfied with merely
hearing, as he testified, that a registered letter was on its
way. Either the fact that the letter was on its way itself was
sufficient to apprise him that he had been discharged, so
that he felt no need to ask anything else, or he was in fact
told he had been discharged. In view of the fact that he had
his friend help with the preparation of the grievance over
the weekend, and went to see a lawyer on March 6, as well
as the fact that Fleck was a credible witness with no reason.
as I have indicated, to embellish her conversation with
King of March 6, I have credited Fleck's version of the
conversation.
As I have already concluded that the contract gave King
48 hours to file from the discharge, his grievance was in fact
untimely. Cf. United Steelworkers of America, AFI. CIO
(Inter-Royal Corp.), 223 NLRB 1184. 1185 (1976), cited by
the General Counsel, where a violation was found when a
union president "just did not 'give a damn', as far as he was
concerned her time to file a grievance had just run out,
when it obviously had not. " (Emphasis supplied).
This does not end the matter, for a union can violate
Section 8(b)(1)(A) even in situations where processing a
grievance, or going to arbitration, might well have been
fruitless. For example, if a union told a would-be grievant
that it would not take his grievance because he had not
been faithful in his attendance at union meetings, a clear
violation would be made out. And it would be no defense
for the union to show at the unfair labor practice hearing
that in fact that grievance was untimely.5
The General Counsel does not contend here that the
Union's treatment of King was based on any particular
characteristic of King. There is not even a suggestion that
any of the union officials did, or had any reason to, dislike
or resent him. Therefore, as stated above, only if the
Union's treatment of him, in all the circumstances, was "so
I But then. of course, we do not know that the Ulnion, or the Company. for
that matter. would have done the same things
' The remedy in the given hypothetical might well be different from that in
a case where the filing would have been timely. It would not een affect the
Board's normal remedy, however. and would, indeed, be totally irrelevan to
both the violation and the remedy, that the merits of the grievance turned
out to be groundless.
perfunctory" and "so unreasonable as to be arbitrary,"
would a violation be made out.
On the entire record, I would not so characterize the
Union's conduct, or lack of it. The "simple negligence . . .
or ineptitude" that the General Counsel concedes does not
suffice to establish a breach are better-fitting words. As the
facts show (including those facts based on King's testi-
monv). Morbec and Blake initially believed that King's
grievance was timely because they thought the time began
to run only with written notification to the grievant, and
they so stated to Ketterer. Only after confering with Shee-
han. and seeing the contractual provision. did they agree
that the 48 hours began to run with discharge. In view of
my conclusion that there is no ambiguity in the contract's
provision, I can hardly fault the U.?nion for its reading of the
contract.6
I have found that King was in fact notified of his dis-
charge before I p.m. on March 6. The General Counsel
claims, however, that the Union had no reason to know
this, that they were not even advised by Ketterer or anyone
else that King had been notified of his discharge on March
6. For that reason, the General Counsel contends that the
Union should not have "blithely accepted" Ketterer's state-
ment.
We have here a Uinion and a Company who have had
more than 40 years of contractual relationships. There is
nothing to suggest that the relationship has been other than
amicable, involving mutual trust and respect. Ihat the
Union accepted the Company's word for when it notified a
man of his discharge is not, in these circumstances. some-
thing to be viewed with suspicion. or the kind of 'perfunc-
tory treatment" that furnishes a basis for a violation of the
Act.'
King himself testified that Ketterer told Sheehan that
King was "told on the phone that I was definitely fired." It
is true that King protested to Morbec and Blake. and that
his protests were given short shrift. But a careful reading of
King's testimony shorts that he was quarreling only with
the allegation that he had "begged tfor his ob back." tIe
never stated, however. hat he had not had the telephone
conversation, or, more to the point. that he sas not told
that he was in fact discharged. There was thus no compel-
ling reason for the Union officials to make any further in-
vestigation.
Also, for much the same reasons that impelled me to
credit Fleck over King as to the substance of their tele-
phone conversation. I am satisfied that the three Union of-
ficials, who were all regular employees at the plant, knew
all about the suspension and discharge. The initial position
I Although the record is silent. I think It probahle that Morbec and Blake
were thinking in terms of the previous contracts w hen the) first thought the
gnevance to be timels.
'I am not sure the I nion's trealment here even amounts to "negligence,"
for reasons set forth below. At another point In his brief, the General Coun-
sel uses the words "disdainful and careless nianner" to characterize the way
the Union handled Kng's grievance "(areless" seems somewhat milder
even than "negligent."' And dlsdainful' does not seem to fit the picture at
all iben assuming that disdainful treatment breaches a union's duty of fair
representation.
' As noted above, Sheehan testified that he did not talk to Ketterer, but
that Blake and Morbec did that King's testimon ,, as wrong, as I have
fBund, with respect to which nion representatives were told of the phone
call does not change the tact ,if 'hat was told
1293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Morbec and Blake itself serves to support this infer-
ence-their view that the grievance was timely being based
on the written notification not being until May 7, not on the
discharge having been within 48 hours of the grievance. I
do not suggest that the Union might not have done a bit
more in response to King's protest, nor, of course, that it
was obliged to accept the Company's word for when King
was notified. But I do not view the time of the oral notifica-
tion as even having been at issue before the Union at the
time. For all the reasons stated above, I conclude that Re-
spondent Union has not violated Section 8(b)(l)(A) by its
conduct in this case.
CONC(LUSIONS OF LAW
The evidence does not establish that either Respondent
Company or Respondent Union engaged in the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER'
The complaint is dismissed in its entirety.
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National abor Relations Board, the findings.
conclusions, and Order herein shall, as provided in Sec. 102.48 of the Rules
and Regulations, be adopted by the Board and become its findings, conclu-
sions, and Order, and all objections thereto shall be deemed waived for all
purposes.
1294