Teamsters Local Union 997 (The Keebler Co.)

National Labor Relations Board - Board Decisions

May 18, 1990

298 N.L.R.B. 604 (N.L.R.B. 1990)

604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Teamsters Local Union 997 (The Keebler Co.) and
Michael W. Hogan. Case 16-CB-3295
May 18, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 21, 1989, Administrative Law
Judge Martin J. Linsky issued the attached deci-
sion. The Respondent and the General Counsel
filed exceptions and supporting briefs. The Re-
spondent filed an answering brief to the General
Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Teamsters
Local Union 997, its officers, agents, and represent-
atives, shall take the action set forth in the Order.
1 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Elizabeth J. Kilpatrick, Esq. and Ruth E. Small, Esq., for
the General Counsel.
G. William Baab, Esq., of Dallas, Texas, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On
March 8, 1989 the charge in this case was filed by Mi-
chael W. Hogan, an individual, against Teamsters Local
Union 997 (the Respondent).
On April 11, 1989, the National Labor Relations
Board, by the Regional Director for Region 16, issued a
complaint, which alleges that Respondent violated Sec-
tion 8(b)(1)(A) of the National Labor Relations Act (the
Act), when it unlawfully refused to process grievances
on three separate occasions because the grievant was not
a member of the Union. Respondent filed an answer to
the complaint in which it denied that it violated the Act
in any way.
Hearings were held before me on July 19 and 20, 1989,
in Fort Worth, Texas.
On consideration of the entire record, to include
posthearing briefs filed by the General Counsel and Re-
spondent, and on my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material the Keebler Company (the Em-
ployer), a Delaware corporation with an office and place
of business in Haltom City, Texas, has been engaged in
the wholesale manufacture and distribution of cookies,
crackers, and snack foods.
During the 12-month period before issuance of the
complaint, the Employer, in the course and conduct of
its business operation described above, sold and shipped
from its Haltom City, Texas facility products, goods, and
materials valued in excess of $50,000 directly to points
outside the State of Texas.
Respondent admits, and I find, that the Employer is
now, and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Teamsters Local
Union 997, is now, and has been at all times material a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Michael Hogan is a Keebler employee at its Haltom
City, Texas facility. He is a member of a bargaining unit
represented by the Union. Texas is a right-to-work State
and employees who are represented by the Union are
free to join or not join the Union. Hogan elected not to
become a union member. There is a collective-bargaining
agreement in effect covering all times material herein be-
tween the Employer and the Union, which contains a
grievance and arbitration clause. It is alleged that on
three occasions Hogan asked union officials to file a
grievance, and it is alleged the Union failed to file griev-
ances because the grievants were not union members.
A union owes a duty of fair representation to the
people in the unit it represents whether those people are
union members or not. The duty of fair representation
requires that a grievance filed by a bargaining unit
member, whether union member or nonmember, not be
processed by the union in an arbitrary, discriminatory,
perfunctory, or bad-faith manner. Vaca v. Sipes, 386 U.S.
171 (1967). A union's breach of its duty of fair represen-
tation is a violation of Section 8(b)(1)(A) of the Act. Mi-
randa Fuel Co., 140 NLRB 181 (1962), enf. denied 326
F.2d 172 (2d Cir. 1963). To refuse or fail to process a
grievance because the grievant is not a union member
violates the union's duty of fair representation. Machinists
District 186 (Federal Mogul), 291 NLRB 535 (1988).
298 NLRB No. 83
TEAMSTERS LOCAL 997 (KEEBLER CO.) 605
I will address separately each of the three alleged vio-
lations of the Act.
B. Overtime Grievance
Sometime in January 1989 Michael Hogan, who was
not a member of the Union, was asked to work overtime.
It was just 2 minutes before quitting time. He asked the
supervisor who asked him to work overtime if it was an
emergency situation. The supervisor said he didn't know
if it was or not. Hogan refused the overtime and was
told he would be getting points for his refusal to work
overtime. At the plant employees accumulated points for
such things as absence without leave, tardiness, refusal to
work overtime, etc.
The following morning Hogan approached Victor
Talley, the chief steward at the plant. Hogan asked
Talley to file a grievance over the matter of Hogan get-
ting points because Hogan claimed that under the con-
tract an employee gets points for refusing overtime only
if asked an hour or more before the overtime if he or she
will work it unless it is an emergency. Hogan was not
given an hour's notice and was not told it was an emer-
gency and he wanted to grieve the matter.
Talley initially' told Hogan that the Company was
right and he should get the points. Hogan thought about
that and approached Talley a short while later and again
asked Talley to file a grievance . Talley told Hogan that
he (Hogan) was not a union member and Talley did not
have to file a grievance for him. Hogan argued to Talley
that under the contract the Union had to represent him
even though he was not a member. Talley then said that
if Hogan joined the Union he would represent him but it
would not look good to the dues-paying members to see
the Union represent a nonmember.
Hogan, on his own, then went to see Production Su-
perintendent Dan Doyle. Doyle determined that the
Company had failed to follow its own procedure in first
posting' a list asking for volunteers for overtime before
assigning overtime to Hogan. Doyle concluded that since
the Employer didn't follow the rules on first soliciting
for volunteers it would be unfair to give Hogan any
points on refusing the overtime. Hogan, in effect, suc-
cessfully pursued his own grievance.
In the final analysis Hogan was not injured in any
way. However, the Union, through its Chief Steward
Victor Talley, violated Section 8(b)(1)(A) of the Act
when Talley told Hogan that the Union would not file a
grievance for Hogan because he was not a union
member. An order to cease and desist and the posting of
a notice will fully remedy this violation of the Act.
I found Hogan to be a very credible witness. He was
honest and forthright. His demeanor was such that I
credit his testimony. Talley's denial that he told Hogan
he (Talley) would not file a grievance on Hogan's behalf
because' Hogan was not a union member is not credited.
Hogan was a day-shift employee and Talley was a night-
shift employee. Hogan spoke with Talley as Talley was
leaving in the morning and Hogan coming on duty.
Talley claims-and I don't believe it-that he told
Hogan he would investigate Hogan's complaint. Talley
claims he went home, got some sleep, and returned to
the plant around 12 noon to investigate Hogan's com-
plaint. Further, that was his only reason for returning to
the plant. He found out that Doyle had decided not to
give Hogan any points and concedes he never told
Hogan this. Talley's testimony was not credible.
C. Daily Log Grievance
Plant Superintendent Dan Doyle implemented a pro-
gram whereby sanitation department employees were to
file daily logs detailing what they did during the day.
Some detail was required but the forms could not be
filled out until the end of the day, since employees were
not allowed to carry pens or pencils on their person as
they went about their work.
Michael Hogan, who, as noted above, is not a union
member, worked in the sanitation department as did a
number of other employees, a number of whom were
union members.
In February 1989, Hogan and two other employees in
the sanitation department, Cindy Simmons and Hanh
Duc Doa, approached alternate Day Shift Steward Ken-
neth Davis about their concerns involving the daily log
sheets. Hogan thought Doyle was using the the daily log
sheet requirement to harass the sanitation department
employees. Davis said he'd talk to Day Shift Steward
Kirk Hostman about it and get back to them. When
Davis didn't get back to them they went to see Kirk
Hostman themselves.
Hogan, Cindy Simmons, and Hanh Duc Doa ap-
proached Hostman. Hogan did the talking. Hogan is not
a member of the Union. Simmons was still a member of
the Union but had previously spoken to Hostman and
asked him how could she resign her membership in the
Union. She made it crystal clear to Hostman that she
wanted out of the Union. Hanh Duc Doa is a Vietnam-
ese who spoke and understood very little English. Hanh
was a member of the Union. Hogan and Simmons testi-
fied and I find both to be credible witnesses. Their de-
meanor was that of honest people. Hanh did not testify.
Hogan told Hostman, in the presence of Simmons and
Hanh, the concerns about the daily logs. Hostman told
them to see their supervisor. Hogan explained that he
had already spoken to their, supervisor, Terry Rodgers,
and Rodgers had said to file a grievance.
Hostman then said that he would not file a grievance
because they were not union members.
Cindy Simmons corroborates Hogan. She credibly tes-
tified that Hostman said when she, Hogan, and Hanh
spoke with him, that since they were not union members
he (Hostman) would not be, able to file a grievance for
them. She testified that Hostman went on to say that if a
union member wanted to file a grievance he would do
so.
I credit Hogan and Simmons. I can only conclude and
do conclude that Hostman simply ignored Hanh because
of his lack of understanding of the English language and
directed his comments to Hogan, a nonmember, and Sim-
mons, who was in the process of dropping her union
membership. Simmons sent a letter to the Union on Feb-
ruary 6, 1989, resigning her union membership but had
spoken in January to Hostman about how to resign her
membership.
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Either later that day or the next day Hostman came
into a meeting attended by Hogan , Simmons, Hanh, and
their supervisor, Terry Rodgers. Hostman again , accord-
ing to Hogan and Simmons , said he could not file a
grievance on their behalf over the daily logs because
they were not union members.
Rodgers , who was called as a witness in Respondent's
case, could not remember if Hostman said he would not
file a grievance because the grievants were not union
members or not. I give no weight to this part of Rod-
gers ' testimony because he couldn 't remember what was
said , he is apparently a friend of Hogan and Simmons,
but as a supervisor he would not want to be in the
middle of this type of dispute since there will continue to
be a collective-bargaining relationship between his Em-
ployer and the Union. He did testify, however, that
Hogan told him that the Union wouldn't file a grievance
over the logs because Hogan was not a member of the
Union.
I do not credit Hostman 's denial that he ever said he
could not or would not file a grievance because the
grievants were not union members. Hostman had been a
steward for only a few months when he spoke about the
grievance over the daily logs . He claims he merely told
Hogan and the others to set up a meeting with Produc-
tion Superintendent Dan Doyle. I don't believe him. I
credit Hogan and Simmons . No union member ever did
file a grievance over the daily logs and the record re-
flects no further action was taken on the matter.
The remedy for this violation of Section 8(b)(1)(A) of
the Act is the same as the remedy for the earlier viola-
tion, i.e., an order to cease and desist and the posting of
an appropriate notice and this is so even though there is
evidence in the case that both before and after the three
incidents with Hogan that the Union did pursue griev-
ances on behalf of employees who were not union mem-
bers.
D. Suspension Grievance
On March 1 , 1989, Michael Hogan was assigned over-
time in production , which required working with ma-
chinery . He approached Production Superintendent Dan
Doyle and showed Doyle a doctor 's note which stated
that Hogan was under the care of a physician and that
he should "avoid operating any machinery." When
Doyle found out from Hogan that Hogan was taking
drugs for his condition-depression-and may have to
take the drugs possibly for the rest of his life Doyle said
to Hogan that if he couldn 't work production then he
couldn 't work at all and laid him off. In the sanitation
department the 'employees work very little with machin-
ery and the situation is such that one employee can do a
task for another and as a practical matter an employee in
sanitation could ' virtually work without using machinery.
I note at this juncture that work accommodations have
been made in the past for employees of Keebler. Roland
Ocasta and Terry Meadows were given light duty fol-
lowing their return to the job after having medical prob-
lems.
Hogan and his girl friend , Sandra Lee , went to the
union hall the next day, March 2, 1989 . Hogan told the
receptionist who he was and that he wanted to talk to
someone about his problem . The receptionist went back
and just moments later Daulton Alexander, the president
of the Union, came out and behaved in a most abusive
and boorish manner . After Hogan told Alexander his
name and that he was not a union member Alexander, in
a loud voice , told Hogan to get out of the "God dam
building." Hogan said he wanted to file a grievance and
Alexander told him to go back to the plant and talk to
his (Hogan's) shop steward. Alexander, who did not tes-
tify, was unusually rude toward Hogan in the presence
of Hogan's girl friend but Alexander did tell Hogan to
go back and see a shop steward about filing a grievance
over the suspension . Alexander did not tell Hogan that
the Union would not pursue a grievance over Hogan's
suspension because of his nonmembership in the Union
or any other reason . Hogan did not go and see his shop
steward about filing a grievance and indeed no written
grievance was ever filed concerning the suspension or
layoff.
The testimony of Plant Superintendent Dan Doyle and
Union Chief Executive Officer Jerry Putnam reflect that
Putnam and Alexander made inquiries concerning
Hogan's suspension . Hogan also spoke with his Supervi-
sor Terry Rodgers . Doyle made efforts to clarify exactly --
what the limits were on Hogan working with machinery.
Doyle eventually received a note from Hogan 's doctor
that Hogan could safely work with machinery provided
he didn 't do it for too long in one place without being
able to move around at all. In May 1989 , after being off
work for 2 months, Hogan returned to his job. He there-
after went off work for a back injury sustained on the
job prior to his suspension on March 1 , 1989 . Hogan's
back injury is not a factor in deciding whether or not the
Union failed in its duty-of-fair representation to Hogan.
With respect to this suspension grievance I conclude
that the Union did not violate the Act because the Union
did not refuse to file a grievance for Hogan over his sus-
pension because he was not a union member or for any
other reason but rather the Union, by Alexander, told
Hogan to return to the plant, find his steward , and file a
grievance . Hogan did not do so although he concedes
this is what Alexander told him to do albeit in a rude
and discourteous manner . Evidence at the hearing re-
flects that grievances were prepared and filed at the
plant and not at the union hall and ' that the Union felt
only union members should have access to the union hall
which is paid for by dues. Denial of access to the union
hall is not alleged in the complaint as an unfair labor
practice.
The only question is whether Hogan was excused from
going back to the plant and seeking out a steward in
order to file a grievance on the grounds that as previous-
ly noted, Talley and Hostman, had refused to file griev-
ances because of his nonunion membership . I think not.
Had Alexander merely told, Hogan to leave the building
the answer would be yes but since Alexander added the
instruction to see a steward Hogan was not denied the
right to pursue or file a grievance because he ,was not a
union member.
TEAMSTERS LOCAL 997 (KEEBLER CO.) 607
At the hearing before me the Union elected under the
so-called Mack- Wayne II case t to litigate the merits of
Hogan's suspension grievance only if it was concluded
that the Union violated its duty of fair representation
toward Hogan in connection with this grievance. Since I
conclude that the Union did not violate its duty of fair
representation toward Hogan in connection with the sus-
pension grievance it will not be necessary for a second
hearing on the merit of Hogan 's grievance.2
CONCLUSIONS OF LAW
1. Teamsters Local Union 997 is a labor organization
within the meaning of Section 2(5) of the Act.
2. By refusing to file grievances at the request of Mi-
chael Hogan regarding an overtime matter and a matter
involving daily log sheets in the sanitation department at
Keebler's Haltom City, Texas facility because the griev-
ant was not a member of the Union, the Union violated
Section 8(b)(1)(A) of the Act.
On these findings of fact, conclusions of law, and the
entire record in this proceeding, I issue the following
recommended3
(a) Post copies of the attached notice marked "Appen-
dix."4 Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by
Respondent's authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members and employ-
ees are customarily posted. Reasonable steps shall be
taken by by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."
APPENDIX
ORDER
The Respondent, Teamsters Local Union 997, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to file grievances because the grievant is
not a member of the Union.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
' Rubber Workers Local 250 (Mack-Wayne), 290 NLRB 817 (1988)
2 Provided, of course, that my conclusion regarding the suspension
grievance is not disturbed by either the Board or the courts.
2If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to file a grievance because
the grievant is not a member of the Union.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of rights guaranteed
them in the National Labor Relations Act.
TEAMSTERS LOCAL UNION 997