United Steel Workers of America

National Labor Relations Board - Board Decisions

Dec 22, 1971

194 N.L.R.B. 716 (N.L.R.B. 1971)

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Steel Workers of America , AFL-CIO, and its
Locale 4803 (Grasis Fabricating Company) and
Joseph J. Soptic. Case 17-CB-864
December 22, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On September 14, 1971, Trial Examiner George L.
Powell issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be dismissed in its entirety.
1 The General Counsel has excepted to certain credibility findings made
by the Trial Examiner. It is the Board's established policy not-to overrule a
Trial Examiner 's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A 3). We have carefully examined the record and
find no basis for reversing his findings
In adopting the Trial Examiner's recommendation that the complaint
herein be dismissed in its entirety we do so, after a full review of the
record, solely on the grounds that the General Counsel failed to establish
by a preponderance of the evidence that the Respondents have violated the
Act as alleged in the complaint.
TRIAL EXAMINER'S DECISION
GEORGE L. POWELL, Trial Examiner: Upon charges filed
on March 16, 1971, amended May 27, 1971, by Joseph J.
Soptic, herein called Soptic or Charging Party, against
United Steel Workers of America, AFL-CIO, and its Local
4803, herein called Respondent International and Respon-
dent Local-respectively, the RegionaLDirector for Region
17 of the National Labor Relations Board, herein called the
Board, issued a complaint on May 28, 1971, alleging a
violation of Section 8(b)(1)(A) of the National Labor
Relations Act,,as amended (29 USC Section 151, et seq.),
herein called the Act. In its duly filed answer, Respondent
International, while admitting certain allegations of the
complaint, denied the commission of any unfair labor
practices. Respondent Local moved to be severed from the
case, which motion is granted herein.
Pursuant to notice a trial was held before me in Kansas
City, Missouri, on June 30, 1971, where the parties were
present, were represented by counsel, were afforded full
opportunity to be heard by examination, and cross-
examination of witnesses , and were permitted to present
oral argument and file briefs. Briefs were duly filed, after
one extension of time, by the General Counsel and the
Respondent on August 16, 1971. On the entire record of
evidence, and from my observation of the witnesses as they
testified, and on due consideration of the briefs, I find, fors
the reasons hereinafter set forth, that the General Counsel
has failed to establish by a preponderance of the evidence
that Respondent International violated the Act as enumer-
ated in the complaint and I will recommend that the
complaint be dismissed in its entirety.2
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER
Grasis Fabricating Company, herein called Company, is
a Delaware corporation , maintaining a facility in Kansas
City, Missouri, where it is engaged in the manufacture of
steel microwave -towers and custom metal fabricated
products.
In the course and conduct of its business , Grasis
Fabricating Company annually makes purchases of goods
and materials valued in excess of $50 ,000 directly from
suppliers located outside the State of Missouri. Further, the
Company annually sells and ships products valued in
excess of $50,000 directly to customers located outside of
the State of Missouri.
I find, as admitted , that the Company is now , and at all
times material herein has been, an employer , engaged in
commerce within the meaning of Sections 2(6) and 2(7) of
the Act.
II. THE LABOR ORGANIZATION
I find, as admitted, that: (1) Respondent International is
now, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act;
and (2) Respondent International is now, and at all times
material herein has been, the recognized exclusive repre-
sentative for collective bargaining of all production and
maintenance employees employed by Company at its
aforesaid Kansas City, Missouri, facility, excluding office
clerical employees, draftsmen, professional employees, and
supervisors as defined in the Act:
Inasmuch as it appears that Joe Beeves does not represent
1 Cf Bishop & Malco, Inc., 159 NLRB 1159, 1161
2 The Motion to Correct the Record made by General Counsel in his
brief is granted and the corrections appear herein as Appendix. [Omitted
from publication. ]
194 NLRB No. 119
UNITED STEEL WORKERS OF AMERICA 717
Respondent Local, and acted in his responsibility as
Respondent Internationals' representative at all times,
Respondent Local has no standing in this proceeding.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Joe Soptic, a member of the bargaining unit, had been
laid off from his work in the tool crib for lack of work by
the Company, on December 14, 1970. He filed a grievance
with his steward of Respondent Local on December 16,
1970, alleging seniority over employees not laid off. An
application for seniority (covered by article VIII, section 2
of the collective-bargaining agreement) is governed by (a)
length of continuous service, (b) qualifications to perform
the work, and (c) physical fitness.
The grievance was processed through the first two steps
under the collective-bargaining agreement being denied in
each instance because of Soptic's physical disability. At the
first step, Foreman Johnson said he could not give Soptic
light work as others would become jealous. At the second
step, Superintendent Larson said he could not take Soptic
back because of his injury and there was no light work
available for him. Soptic appealed the decision to the third
step of the grievance procedure. According to the contract,
this involves a meeting with the President of the Company
or his representative, and a "representative of the national
organization of the Union and the Union Grievance
Committee."
Thus the third step was the first time International
Representative Joe Beeves became involved. This grievance
was taken up on March 8, 1971, in the office of President
Grasis with the following persons present: President Grasis,
Plant Superintendent Larson, Charging Party Soptic,
International Representative Beeves, President of Respon-
dent Local Kent, Chief Union Steward Florence, and
Committeemen Logan and Ivy.3
This grievance meeting had begun at about 10 a.m. and
grievances other than Soptic's had been handled before
Soptic was invited in at about 12:05 p.m. When he entered,
Larson asked him just one question for which he wanted a
"Yes or No" answer. He asked Soptic if he would come
back to work as an A-class operator, his old job. Soptic
replied that he would try. Beeves thereupon said "You can't
ask a man for any more than that ...." "He's perfectly
willing to try. That settles it." Larson excused him from the
meeting and Kent congratulated him on winning the
grievance and going back to work. Kent told the gathering
that the Company should not expect Soptic to go right in
and do his job exactly as he had done it before but to give
him a chance to get "broke in again and get [his ] bearings."
Soptic then left the meeting.
Not having heard from anyone as to what time he should
report to work, Soptic called'Night Foreman Howerton on
March 10 to see why he had not been so advised. Howerton
told him the Company was expecting him on the 9th, and
told him to report on the 7 o'clock shift on March 11, 1971.
Soptic did report to work as told but Foreman Ben
"Johnson told him "I can't let you clock in and go to work."
"I've got orders from Mr. Larson ... and from Mr. Grasis
not to let you clock in." No further explanation was made
and Soptic went home.
A day or two later Soptic received a copy of a memo
dated March 11, 1971, to the chief shop steward from
President Grasis to the effect that inasmuch as the company
doctor had not approved Soptic's return to regular work he
did not meet the physical requirements of the contract set
out in article VIII sec. 2(c), above, and accordingly would
be retained on layoff until his condition improved and the
Company's doctor would release him to work. On March
15, 1971, Soptic received a telegram from the Company
stating that the third step grievance was denied.
Timely Notification-Arbitration Step-Concluding
Findings
In addition to the belief held by Soptic, Kent, and Beeves
that the grievance was granted at the third step of the
grievance procedure, as noted above, the contract in article
X section 3, step 3, provides that
If the President of the Company or his designated
representative does not give an answer within five (5)
working days from the date of the third step meeting,
the grievance will be deemed to have been granted.
When Soptic received the above telegram on March 15,
1971, he called Beeves about it. Beeves told him he thought
the grievance was settled and that Soptic was back to work.
Soptic told him that Don Johnson would not allow him to
go in to work and Beeves said, "I guess you better file
another grievance." Soptic testified to the following
conversation with Beeves:
I said, "I already filed another grievance to the third
step, I don't think I should have to file another
grievance." . . . the Company was supposed to notify
me in five working days, and they didn't do it. "It's been
eight days including the weekend. It's been six days,"
and [Beeves] said, "Well, follow grievance procedures."
"You mean clear from the first step?" and he said,
"Yes," and I said, "I didn't think I was going to, I
wasn't going to file a grievance. I thought we should go
to the fourth step," fourth step of arbitration. He said,
"There's not going to be any arbitration."
At this point, Soptic threatened to take the matter to the
Labor Department to "find out what's right and what's
wrong." Beeves said, "Go ahead and file a report. It won't
do you any good." Soptic replied, "I'm going to file and
find out whether or not it's going to do any good." Still
according to Soptic, Beeves said, "Now, you're raising hell
with me. Where were you during the strike? You weren't
out there walking in the picket line."
Beeves testified that he decided not to process Soptic's
grievance to the fourth step of arbitration but instead to
have Soptic file a new grievance, because a new grievance
would only involve the question of whether the third step
grievance had been granted whereas arbitration over the
original agreement would involve Soptic's physical fitness.4
These reasons, on their face, are meritorious. The facts are
strong that the Company is bound by a decision favorable
to Soptic at the third step whereas Soptic's physical
3 Soptic testified that employee Main was also present This was dented
by other witnesses and Main did not testify. I find he was not present.
4 Be-wes said he could not very well appeal a settlement in his favor.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disability had caused the unfavorable disposition at the first
two steps of the grievance procedure and conceivably could
lose the arbitration.' Under these circumstances, wise
leadership of the Union and prudent use of union funds
would dictate the decision made by Beeves.
The General Counsel's position and the burden of proof
on him is to establish that the reasons given by Beeves are a
pretext with the real reason for not prosecuting the
grievance to arbitration being to discriminate against
Soptic for his lack of participation in a recent strike called
by the Union. Evidence in support of this theory is given by
Soptic when he testified that at the above telephone
conversation, after he had told Beeves he was going to file a
report with the Labor Department to "find out whether or
not it's going to do any good," Beeves said, "Now, you're
raising hell with me. Where were you during the strike? You
weren't out there walking in the picket line." 5
Beeves contradicted Soptic. According to Beeves, he
never discussed Soptic's picket line activity with Soptic in
March when this altercation arose. He did testify, however,
that some 3 months earlier in December Soptic's picket line
activity had been discussed. Soptic had come to his office to
discuss a vacation grievance he had filed. Beeves pointed
out to him that he would not process the vacation grievance
inasmuch as the Company would not settle it as to do so the
Company would admit liability under a workmen's
compensation claim. But, he told Soptic, the Company had
advised him it would pay the vacation grievance as soon as
Soptic established his workmen's compensation claim.
Beeves testified that thereafter:
I couldn't get anything out of Mr. Soptic, except "I'm
going to the Board, my lawyer said and why don't you
do something for me, you've never done anything for
me after all I've done for you." He went over this time
and time again about all he did for the Union. That's
when I said the statement that I did say to him, "I'm not
sure about all you've done for the Union." He then said
to me, "I walked the picket line up to the last day." I
said, "I don't think you walked it at all."
I credit Beeves and find that Soptic first raised the
question of his union activities in argument in support of
his vacation benefit in December 1970 and that Beeves
countered, challenging Soptic's declarations of all he had
done for the Union. Obviously, Soptic was attempting to
get Beeves to do something against his better judgment on
the ground that Beeves and the Union owed him
something. This argument falls flat if there is no debt and
Beeves just pointed out that there, was in truth no debt. This
is a far different thing from establishing that the fourth step
to arbitration over another grievance was withheld
discriminatorily by the Union because Soptic had not
walked the 1969 picket line. In the face of the meritorious
position of Beeves as set out above I cannot find that the
General Counsel has established by a preponderance of the
evidence that Respondent International has violated the
Act in the particulars set out in the complaint [cf. United
Steelworkers of America, AFL-CIO, and its Local 4338
(Miami Copper Company, Division of Tennessee Corporation)
190 NLRB No. 12.]
The Motion to Sever made by Respondent Local is
hereby granted inasmuch as it is not a necessary party to
these proceedings under these circumstances.
THE REMEDY
Having found that the General Counsel has failed to
establish by a preponderance of the evidence that
Respondent International has violated the Act I shall
recommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Company is an employer within the meaning of
Section 2(2) of the Act.
2. Respondent International is a labor organization
within the meaning of Section,2(5) of the Act.
3. Joe Beeves has been at all times material herein an
agent of Respondent International within the meaning of
Section 2(13) of the Act,
4. The allegation of paragraph 7 of the complaint that
Respondent International and Respondent Local violated
Sections 8(b)(1)(A), 2(6), and 2(7) of the Act has not been
established by a preponderance of the evidence.
5. Respondent Local is not a necessary party to this
proceeding and is severed from the case.
Upon the foregoing findings of fact and conclusions of
law, and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDERS
The complaint is dismissed in its entirety.
5 Soptic testified without contradiction that at a strike at the Company findings, conclusions, recommendations, and Recommended Order herein
in 1967 he picketed throughout "the whole thing," but at the recent strike shall, as provided in Section 102.48 of the Rules and Regulations, be
in 1969 of about 100 days he only walked about I day on the picket line adopted by the Board and become its findings, conclusions, and order, and
6 In the event no exceptions are filed as provided by Section 102.46 of all objections thereto shall be deemed waived for all purposes.
the Rules and Regulations of the National Labor Relations Board, the