United Rubber Workers, Local 878

National Labor Relations Board - Board Decisions

Mar 25, 1981

255 N.L.R.B. 251 (N.L.R.B. 1981)

UNITED RUBBER WORKERS, LOCAL 878 251
United Rubber, Cork, Linoleum and Plastic Workers
of America, Local 878 (Goodyear Tire &
Rubber Company) and Edward A. Marvin. Case
26-CB- 1569
March 25, 1981
DECISION AND ORDER
On October 8, 1980, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light
of the exceptions and brief and has decided to
affirm the rulings, findings,' and conclusions of the
Administrative Law Judge but not to adopt his rec-
ommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
United Rubber, Cork, Linoleum and Plastic Work-
ers of America, Local 878, Union City, Tennessee,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Preventing nonunion unit employees from re-
ceiving grievance pay.
(b) Informing employees that it has prevented
nonunion unit employees from receiving grievance
pay.
I Respondent excepts to the Administrative Law Judge's reliance on,
and acceptance of, what is in its view hearsay testimony in finding that
Respondent violated Sec. 8(b)(I)(A) and (2) of the Act. We find no merit
in this exception.
The Board has decided that it is not bound to apply strictly the Feder-
al Rules of Evidence concerning hearsay. Alvin J. Bar and Co.. Inc., 236
NLRB 242 (1978). In any event, the statements involved herein fall
within the definition of an admission by a party opponent, and therefore
are not hearsay. Fed. R. Evid. Rule 801(d)(2). Specifically, Jerry Lee
Pierce, who was at the critical time in question a nonunit maintenance
clerk, testified that he found the error in omitting Marvin from the
Union's grievance pay list and questioned the union representatives as to
whether or not to correct it. Pierce testified that, in his presence, Union
Steward Lampley telephoned Union Group Steward Bob Ivey and dis-
cussed the situation. Lampley then told Pierce to "Pay it as we gave it to
you." When Pierce responded that it was not right, Lampley stated, "Pay
it as we give it to you. We skipped the man intentionally." Pierce later
recounted this conversation to Lewis and Marvin. Lewis also repeated
this conversation to Marvin on one occasion. The Administrative Law
Judge also credited the testimony of employee Norman Petty that Union
Steward Odom told Petty that he (Odom) knew the Union had a duty of
equal representation of employees, but did not know if that went as far as
grievance pay. Further, Union Steward Richard Lewis testified that
Odom told him that he felt that, if a person was not in the Union. the
person should not get grievance pay.
Each of the statements noted above was made by a representative of
Respondent to a witness who testified at the hearing. Accordingly, they
clearly constituted admissions attributable to Respondent. We further
note that neither Lampley nor Odom took the witness stand to contradict
the testimony of Pierce, Petty, and Lewis, who himself was a union ste-
ward.
2 We will issue an Order in lieu of that recommended by the Adminis-
trative Law Judge to correspond more closely to the violations found.
255 NLRB No. 32
(c) In any like or related manner restraining or
coercing employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Post at its offices and meeting places copies
of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 26, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Sign and return to said Regional Director
sufficient copies of the attached notice marked
"Appendix" for posting by Goodyear Tire &
Rubber Company, if willing, in conspicuous places,
including all places where notices to members are
customarily posted.
(c) Notify the Regional Director for Region 26,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
3 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prevent nonunion unit em-
ployees from receiving grievance pay.
WE WILL NOT inform employees that we
have prevented nonunion unit employees from
receiving grievance pay.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed them by Section 7 of the
Act.
UNITED RUBBER, CORK, LINOLEUM
AND PLASTIC WORKERS OF AMERICA,
LOCAL 878
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: United
Rubber, Cork, Linoleum and Plastic Workers of Amer-
ica, Local 878, herein called the Union, Local 878 or Re-
spondent, was alleged to have violated Section
8(b)(l)(A) and (2) of the Act in a charge filed by
Edward A. Marvin, an individual, on October 2, 1979.1
On November 15, the Regional Director issued a com-
plaint and notice of hearing alleging as violative of the
Act, that, after a grievance in behalf of a group of em-
ployees, which included Marvin, had been filed and been
sustained, the Union intentionally omitted Marvin's name
from a grievance pay list which caused the Company not
to pay Marvin the amount of money due him under the
settlement of the grievance and that the Union, through
two of its stewards, Lewis and Odom, stated that Marvin
would not be paid because he was not a union member.
Respondent's timely answer admitted the jurisdictional
and commerce allegations, its status as a union and the
collective-bargaining representative of the employees in
an appropriate unit at the Company, and that it had a
current contract with the Company and that the relevant
grievance had been filed on July 30 and been sustained
on September 14. Respondent denied the other allega-
tions of the complaint or that it had violated the Act in
any manner; and affirmatively stated that, after discover-
ing Marvin had not been included in the group of em-
ployees to be paid, it rectified such mistake and Marvin
had been paid the full amount owed him.
Respondent also filed a motion to dismiss the com-
plaint in this matter based on its statement of a "de mini-
mis rule" and that everything necessary to make Marvin
whole had been done.
Counsel for the General Counsel opposed the motion
to dismiss on the basis that the nonpayment had been in-
tentional because of Marvin's nonmembership in the
Union and that the violation had not been cured by the
payment of money to Marvin. This motion has been
denied and renewed and is hereby denied again.
The question in this case is whether Respondent is re-
sponsible for the intentional omission of Marvin from
payments due him under the grievance settlement be-
cause of his nonmembership in the Union and whether
such act and the statements to that effect are violative of
the Act to the extent that they need a remedy. In consid-
ering all the testimony, I find that such actions did vio-
late the Act and that Respondent was responsible and
that an appropriate remedy should be ordered.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in Union City, Tennessee, on April
10, 1980. Counsel for the General Counsel and Respond-
ent gave short oral arguments, and Respondent filed a
brief.
On the entire record in this case, including the exhibits
and testimony, and on my evaluation of the reliability of
the witnesses based on the evidence and the lack of
denial of certain testimony, I make the following:
Unless otherwise stated, all events herein occurred during 1979.
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Goodyear Tire & Rubber Company is a corporation
having offices and places of business in various States, in-
cluding a facility in Union City, Tennessee, where it is
engaged in the manufacture of radial tires. Annually,
Goodyear purchased and received at its Union City fa-
cility, from points directly outside the State of Tennes-
see, goods and materials valued in excess of $50,000, and
during the same period sold and shipped from its Union
City facility, directly to points outside the State of Ten-
nessee, goods and materials valued in excess of $50,000.
Respondent admits, and I find, that Goodyear is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Respondent admits, and I find, that it is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Facts
Goodyear and Respondent have had a contractual re-
lationship for a number of years and the current contract
covers approximately 1,500 employees in what is basical-
ly a P and M unit. The affected group in this case is the
instrument lab employees who are in the unit. Under the
contract, if work is improperly assigned to a wrong
group of employees, a grievance may be filed by the af-
fected employees, and, where the grievance is settled in
their behalf, pay for the work wrongly assigned is made
to the affected employees. The contract provides a se-
niority system and, where such grievance pay is to be re-
ceived, it is paid in order of seniority to a maximum of 4
hours per individual throughout the seniority roster for
the affected group. If during the contract year each of
the employees in that affected group has received 4
hours grievance pay, then the grievance pay would start
again from the top of the seniority list. If a small amount
of grievance pay was due, each person in seniority order
would be paid up to 4 hours, counting all previous griev-
ance pay during the year, and the balance given to the
next employee through that or succeeding grievance pay
payments until he was paid for 4 hours' grievance pay.
On July 30, an employee named Richard Lewis filed a
grievance alleging that work which should have been
performed by the employees of the instrument laboratory
was improperly assigned to other employees. After filing
the grievance, Lewis was elected a steward on the third
shift in the instrument lab. Around September 14, the
grievance was settled at the second step and provision
was made for the payment of 6 hours' pay at regular
rates to whoever was in line to receive it at that point.
On September 26, steward Lewis read out a list of
those receiving grievance pay for that grievance and
stated that employee Starks would receive pay for 1-1/2
hours, employee Maysse would receive pay for 4 hours,
and employee Lewis would receive pay for one-half
hour. After the announcement, employee Edward
Marvin spoke to Lewis, saying the pay arrangement was
improper since he had more seniority than employee
UNITED RUBBER WORKERS, LOCAL 878 253
Maysse and should receive the pay listed to be paid to
Maysse. Lewis agreed that the payment appeared to be
improper according to the seniority status of the individ-
uals and said he would check on it.
Jerry Lee Pierce, who became the maintenance super-
visor in December 1979, was the salaried maintenance
clerk prior to that time and was not in the unit. Pierce
testified that he kept a book or log with a seniority list
and in addition had a master seniority list. Sometime
around July, in making payments in a different griev-
ance, Pierce made up a list of employees to be paid and
sent it to the payroll unit granting grievance pay to em-
ployee Marvin. The error was called to his attention and
a proper distribution was made recalling the amount to
Marvin. Pierce then asked the union steward to take the
book to union headquarters and have it corrected so that
he could make payments correctly. In September, he had
not received the book back from the Union when pay-
ment of this grievance was to be made. On a Friday
afternoon, steward Odom called Pierce and read off the
names of the three employees to be paid, and the
amounts. On the following Monday, Pierce said he
checked the list given him by odom against his master
seniority list to make sure it was in the right order and
found that Odom's list had skipped Marvin. He then
called steward Lampley to the office and explained the
problem to him, asking Lampley whether he should pay
the persons named by Odom or correct it, suggesting it
would be better to correct it right then. (Stewards Odom
and Lampley had been in on the settlement of the griev-
ance.) According to Pierce, Lampley telephoned group
steward Bob Ivey. Pierce testified that he heard Lampley
tell Ivey the problem. After a few minutes, Lampley
hung up the phone and told Pierce "Pay it as we gave it
to you." Pierce told Lampley that it was not right. Lam-
pley said "Pay it as we give it to you." "We skipped the
man intentionally."
Pierce typed up the list as given to him and turned it
in to the accounting office for payment. According to
Pierce, A week or 10 days later he was approached by
union steward Lewis and employee Marvin and asked
why Marvin had been skipped in the payment of the
grievance pay. He told Lewis and Marvin that he did
not do it intentionally, that if they had questions they
should contact the Union and told them the conversation
he had with Lamplay, stating that he had followed the
instructions.
Although the recollections of the individuals as to
where this conversation took place and under what cir-
cumstances differs between the participants, the essentials
of the conversation are the same in all their testimony in
that all state that Pierce recited his conversation with
Lampley and the statements as to why the money was
paid as it was. Lewis repeated the conversation to
Marvin at one point.
Marvin testified that on September 29 he requested
and got a meeting with Third-Shift Superintendent Kim-
ball and that steward Lewis was present with him. At
the meeting he advised Kimball that he had talked to
someone at the NLRB and they had told him he could
not be skipped for grievance pay on the basis of not
being in the Union and that both the Company and the
Union were liable to see that he was paid. Kimball said
that he would take it up.
Marvin asked for an NLRB charge form which was
mailed to him, completed and signed by him, and mailed
back to the Regional Office where it was docketed on
October 2.
On October 5, fellow employee Maysse told Marvin
that the maintenance supervisor called him in and said an
error had been made in paying the grievance pay and
that the amount would be deducted from Maysse's pay
and given to Marvin. On the following day, October 6,
Supervisor Christian told Marvin that he would get the 4
hours' grievance pay in the near future.
Fellow employee Norman Petty testified that Marvin
told him he had been passed over for grievance pay be-
cause he was not a union member. Petty stated that on
October 3 he talked to first-shift steward Odom about it.
Odom said he was aware of the situation and knew the
Union had a duty of equal representation of employees,
but did not know if that went as far as grievance pay.
Odom told Petty that he was responsible for Marvin's
not getting the grievance pay.
Steward Lewis testified that he discussed the problem
of Marvin's being skipped with day-shift steward Odom.
He testified that Odom said he felt that, if a person were
not in the Union, that the person should not get griev-
ance pay.
There is agreement that approximately a week after
being told by the Company that he would get the griev-
ance pay, Marvin received the appropriate amount.
B. Analysis and Conclusions
Respondent argues that since there is a specific section
in the contract between the Union and the Company
which provides a mechanism for employees to later be
made whole for any amounts of pay skipped in making
grievance payments, that this skipping of Marvin, since
he was actually paid, leaves nothing to be done since the
problem was corrected within a week or two of Mar-
vin's being skipped. Respondent asserts that the small
amount of money paid was de minimis and that this case
should not have been processed because everything that
needed to be done was done when Marvin received the
grievance pay.
The General Counsel urges to the contrary that the
problem has been only partially corrected by Marvin's
receipt of the pay, since he asserts the procedure in the
contract is to allow for skips in grievance pay that are
made by mistakes, but not by intentional direction, and
the practice became known, at the least, to the instru-
ment lab employees, and was not rescinded by the
Union. Respondent put on no evidence to rebut the testi-
mony given by Marvin, Lewis, Petty, and Pierce, and it
therefore stands uncontradicted that the skipping of
Marvin for grievance pay because he was not a union
member was done on the basis of directions to Pierce by
shop stewards Odom, Lampley, and Ivey. The uncontra-
dicted testimony that Odom felt it was unnecessary in
representing unit employees that grievance pay be made
to a nonunion employee is the basis for skipping Mar-
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vin's pay. That is confirmed by Lampley's statement to
Pierce that the skipping was done intentionally.
Under the Act, the Union owes a duty to all employ-
ees in a unit it represents, to represent them fairly and
honestly and not to arbitrarily discriminate against
anyone in that unit because of nonmembership in the
Union. The fact of the discrimination and the Union's re-
sponsibility for it is clear on this record and certainly
was known to the employees in the instrument lab,
merely by the fact of the announcement of the manner in
which the pay was to be made. In an organization of
some 20 employees, such as the instrument lab, the em-
ployees know one another's seniority and their relative
standing in it. It was clear in this instance that skipping
Marvin was done for a particular purpose, in essence, to
punish him for not being a union member. The fact that
Marvin was paid eventually does not wipe out the
damage done to employees in that instrument lab and
wherever else it may have become known that the Union
sought to punish an employee for not being a union
member, by not dealing fairly with him in the apportion-
ment of the grievance pay.
I find that the statements made by Odom to Lewis and
to Petty violated Section 8(b)(i)(A) of the Act. I further
find that the statements made by Lewis to Marvin, reiter-
ating what he had been told as to the position of the
Union, and the fact that Marvin was skipped in the pay-
ment of grievance pay violated Section 8(b)(1)(A) and
(2) of the Act, and that partial remedy of the violation of
Section 8(b)(2) has been made by the receipt of the
money by Marvin, but that the violation has not been
completely remedied as stated above. At the present
there is no regression by the Union from the position
taken by Odom, Lampley, and Ivey, and there is no as-
surance that this violation might not be repeated. There-
fore I will order that an appropriate notice be posted by
the Union to all of its members and, if the Company is
willing, posted at the Company where employees of the
instrument lab would normally read company notices.
III. EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Union set forth in section II,
above, occurring in connection with the operations of
the Company, described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend and order that it cease and desist
therefrom and that it take certain affirmative action spec-
ified below, which is necessary to remedy and remove
the effects of the unfair labor practices and to effectuate
the policies of the Act. I recommend that Respondent
not only post a notice to members, attached as an appen-
dix hereto, but that it provide additional copies of the
same for posting by the Company if it is willing.
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum and Plastic Work-
ers of America, Local 878, is a labor organization within
the meaning of Section 2(5) of the Act.
2. Goodyear Tire & Rubber Company is an employer
within the meaning of Section 2(2) of the Act, engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
3. By initially preventing Edward A. Marvin from re-
ceiving grievance pay because he was not a union
member, Respondent breached its duty of fair representa-
tion of unit employees and violated Section 8(b)( )(A)
and (2) of the Act.
4. By informing unit employees and union members
that it had initially prevented Edward A. Marvin, a unit
employee, from receiving grievance pay because he was
not a union member, Respondent violated Section
8(b)(1)(A) of the Act.
[Recommended Order omitted from publication.]