United Steelworkers

National Labor Relations Board - Board Decisions

Apr 30, 1976

223 N.L.R.B. 1184 (N.L.R.B. 1976)

1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Steelworkers of America , AFL-CIO (Inter-
Royal Corp.) and Wilda J. Beshears
Local 3784, United Steelworkers of America, AFL-
CIO and Wilda J. Beshears . Cases 25-CB-2274
and 25-CB-2274-2
April 30, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On December 16, 1975, Administrative Law Judge
Samuel Ross issued the attached Decision in this
proceeding. Thereafter, the Respondents filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in support of the Administrative 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, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
As more fully set forth in the Administrative Law
Judge's Decision, Wilda Beshears was notified by let-
ter on March 22, 1975, a Saturday, that she had been
removed from the Employer's seniority rolls for over-
staying a medical leave of absence which had expired
on March 10.1 Beshears was unable to reach anyone
in either management or her Local until Monday,
March 24, when she spoke to Local President Wat-
son by phone and told him that she had not been
released by her doctor.
After receiving Beshears' phone call, Watson went
to see the Employer's personnel manager, Sawyer,
who showed him a copy of an insurance form indi-
cating that she should have been able to return to
work March 10. Sawyer told Watson that he consid-
ered Beshears to have quit, but nevertheless called
her doctor's office and asked for a written explana-
tion from the doctor concerning her illness and treat-
ment.
In the meantime , Beshears had obtained a state-
ment from her doctor's nurse that she had not been
released to return to work. She called Watson again
and offered to bring in the statement. According to
credited testimony, Watson replied that he didn't
give a damn what she had, didn't want to look at it,
1 The collective-bargaining agreement provides in sec. IX(2Xf) that con-
tinuous service is broken by "failure to report promptly after a vacation or
leave of absence."
and that she was not allowed on company property
because she had been fired. Beshears asked how long
she had to file a grievance; Watson laughed and said
"your time has just run out." Finally, Watson told
her that if the problem with the insurance company,
which had forwarded the original form from her doc-
tor to the Employer, was straightened out, she would
have no difficulty getting her job back.
Around the first or second of April the Employer
was forwarded a letter from Beshears ' doctor to the
insurance company explaining that his original prog-
nosis had been overly optimistic and that she was
still being treated. On April 14, Beshears' doctor re-
leased her to return to work, but the Employer would
not accept her.
The Respondents, Local 3784, United Steelwork-
ers of America, AFL-CIO, and its parent, were
charged with violating Section 8(b)(1)(A) by refusing
to process Beshears' grievance; a complaint was is-
sued; and the Administrative Law Judge found that
Section 8(b)(1)(A) had been violated. The Respon-
dents, both here and as they did before the Adminis-
trative Law Judge, defend principally on the ground
that Watson acted in good faith. In their view, Wat-
son presented an oral first-step grievance in his con-
versation with Sawyer on March 24, thereby initiat-
ing a 7-day time limit under the contract on any
appeal to the second stage of the grievance proce-
dure. Respondents contend that this time limit had
run out before they became aware that Beshears'
doctor had corrected his earlier, inaccurate progno-
sis. And, they contend, they had no duty to secure
proof of Beshears' grievance for her.
Although we agree with the Administrative Law
Judge that the facts establish a violation of Section
8(b)(1)(A), we find no need to go beyond the events
of March 24. Nor do we find it necessary to de-
termine whether or not Watson did present a griev-
ance on that date, or to choose among the conflicting
interpretations of the contract offered by the parties.
The Respondents' argument that the time limit for
appealing the grievance had run out before Beshears'
doctor had corrected his earlier prognosis is not per-
suasive. That could be a meritorious defense only if
the Respondents had acted lawfully at the start. If, as
we find, the Respondents violated the Act March 24,
the defense amounts to nothing more than a bare
claim that, having persisted in a coercive failure and
refusal to process Beshears' grievance, they should
now be allowed to take an unlawfully gained refuge
under the contract's time limitations. And our con-
clusion would be no different even were we to hold
that an exclusive collective-bargaining representative
might properly refuse to press an apparently merito-
rious grievance, in the absence of other evidence of
bad faith, on the ground that the employer might
raise an affirmative defense of timeliness under the
223 NLRB No. 177
UNITED STEELWORKERS 1185
contract. There was no question of timeliness on
March 24.
This proceeding is rooted in little more than a cler-
ical error, an everyday occurrence. With good will, it
should have been easily clarified. Despite that simple
and wholly plausible explanation, which Beshears
urged on Local President Watson and which is now
not even contested, Watson, rather than acting as her
advocate, peremptorily refused her explanation and
attempt at proof. We need find no duty on the Re-
spondents' part to pursue the proof of Beshears'
grievance; they rejected her attempt to provide that
proof. And it is patently irrelevant that the proof
Beshears had in hand on March 24 might not have
fully satisfied the Employer-it was not even consid-
ered by the Respondents. Watson 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.
Whether or not the Respondents through the exer-
cise of proper and reasonable efforts thereafter to
vindicate Beshears ' rights could have cured their un-
lawful conduct, or whether they in fact would have
attempted to but for alleged time limitations, are of
no moment. They did not do so; and, but for their
original unlawful action, the question would not even
arise.
We conclude, as did the Administrative Law
Judge, that the Respondents' failure and refusal to
process Beshears ' grievance restrained and coerced
her in violation of Section 8(b)(1)(A).2 However, al-
though we generally agree with the Administrative
Law Judge's proposed remedy, the Respondents' lia-
bility, reasonably, must be limited to any loss Besh-
ears suffered as a result of the refusal to consider and
process her grievance. Therefore, the Respondents'
backpay liability will terminate not only in the cir-
cumstances set forth by the Administrative Law
Judge, but also if and when the Respondents secure
consideration of her grievance by the Employer and
thereafter pursue it in good faith with all due dili-
gence.' A mere attempt to secure Employer consider-
ation of the grievance will not now suffice. The time
limit for the grievance has now expired, but that is
attributable solely to the Respondents: under any in-
terpretation of the contract, the grievance was timely
on March 24, 1975, when the violation occurred.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondents United
Steelworkers of America, AFL-CIO, and its Local
3784, Michigan City, Indiana, their officers, agents,
and representatives, shall take the action set forth in
the Administrative Law Judge's recommended Order
as so modified:
1. Substitute the following as paragraph 2(a) of
the Administrative Law Judge's recommended Or-
der:
"(a) Request InterRoyal Corporation to reinstate
Wilda J. Beshears to her former position or, if it no
longer exists, to a substantially equivalent position. If
InterRoyal refuses to reinstate her, ask it to consider
a grievance over her March 11, 1975, termination,
and thereafter pursue her grievance in good faith
with all due diligence."
2. Substitute the following for paragraph 2(b):
"(b) Make Wilda J. Beshears whole for any loss of
earnings she may have suffered as a result of her
discharge by InterRoyal Corporation, from April 14,
1975, when she was ready, willing, and able to work
until such time as she is reinstated by InterRoyal
Corporation or obtains other substantially equivalent
employment or the Respondents secure consider-
ation of her grievance by the Employer and thereaf-
ter pursue it with all due diligence, whichever is soon-
er, together with interest at the rate of 6 percent per
annum, all to be computed in the manner set forth in
the section of this Decision entitled `The Remedy.' "
3. Substitute the attached Appendix for that of the
Administrative Law Judge.
2 Oil Drivers and Filling Station and Platform Workers Truck Drivers, Local
No. 705 International Brotherhood of Teamsters (Associated Transport, Inc.),
209 NLRB 292 (1974); cf. General Truck Drivers, Chauffeurs and Helpers
Union, Local No. 692, International Brotherhood of Teamsters (Great Western
Unifreight System), 209 NLRB 446 (1974).
7 We do not believe that it is necessary or appropriate at this time to order
the Respondents to take Beshears ' grievance to arbitration ; it has yet to be
processed beyond the first stage under any interpretation of the facts.
Whether or not the Respondents', obligations under the Act will require
arbitration of the grievance necessarily depends upon future events and
their own conduct ; most simply , the issue is not ripe. We will amend the
Administrative Law Judge's recommended Order and notice accordingly.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act, and has ordered us to post this
notice and we intend to carry out the Order of the
Board.
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT fail or refuse to file and process
any employee's grievance because of hostility to
the employee, or for any similar reason.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their right to engage in or refrain from engaging
in concerted activities guaranteed by Section 7
of the Act, except to the extent that such right
may be affected by an agreement authorized by
Section 8(a)(3) of the Act.
WE WILL request InterRoyal Corporation to
reinstate Wilda J. Beshears to her former posi-
tion or, if it no longer exists, to a substantially
equivalent position. If it refuses to reinstate her,
we will ask InterRoyal Corporation to consider
a grievance over her March 11, 1975, termina-
tion and will pursue it in good faith with all due
diligence.
Since it was decided that we violated the Act
by failing and refusing to file and process Wilda
J. Beshears' grievance, WE WILL make her whole
for any losses she suffered by reason of our fail-
ure to promptly file and process her meritorious
grievance.
UNITED STEELWORKERS OF AMERICA, AFL-
CIO
witnesses and their demeanor, and after due consideration
of the briefs filed by the parties, I hereby make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
InterRoyal Corporation, herein InterRoyal, is a Dela-
ware corporation which is engaged at Michigan City, Indi-
ana, in the manufacture, sale, and distribution of office
furniture and related products. During the past year, a rep-
resentative period, InterRoyal purchased and received at
its plant in Michigan City, Indiana, goods and materials
valued in excess of $50,000 which were transported to the
said plant directly from places outside the State of Indiana.
During the same period, InterRoyal sold and shipped
products valued in excess of $50,000 from its said plant to
places outside the State of Indiana. The Respondents ad-
mit that InterRoyal is engaged in commerce and in opera-
tions affecting commerce within the meaning of Section
2(6) and (7) of the Act, and I so find.
11. THE LABOR ORGANIZATIONS INVOLVED
The Respondents also admit and I find that they are
labor organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
LOCAL 3784, UNITED STEELWORKERS OF
AMERICA , AFL-CIO
DECISION
SAMUEL Ross, Administrative Law Judge: Upon charges
filed by Wilda J. Beshears on April 30, 1975, against Unit-
ed Steelworkers of America , AFL-CIO, herein the Respon-
dent International, and on June 25 , 1975, against Local
3784, United Steelworkers of America, AFL-CIO, herein
Respondent Local, the General Counsel of the National
Labor Relations Board issued complaints on June 27 and
July 14, 1975, respectively, against the Respondents, alleg-
ing that they had engaged in unfair labor practices within
the meaning of Sections 8(bXI)(A) and 2(6) and (7) of the
National Labor Relations Act, as amended. The Respon-
dents filed answers denying the substantive allegations of
the complaints and the commission of unfair labor practic-
es. On July 14, 1975, the Regional Director of Region 25 of
the Board issued an order consolidating the two cases. On
August 14, 1975, a hearing on the issues raised by the
pleadings was held before me at Michigan City, Indiana.
Upon the entire record,' including my observation of the
1 Following the close of the hearing, the Respondents ' counsel moved to
include in the record for the purpose of impeachment only. an affidavit
given by the Charging Party Wilda J . Beshears to an agent of the Board on
May 19. 1975. The said motion was granted and the affidavit has been
marked Resps . Exh. 6 and placed in the exhibit file. After the close of the
hearing, the General Counsel moved to correct some of the errors in the
transcript of the hearing , and one in the exhibit file . The said motions are
A. The Question Presented
The principal issue presented in this case is whether the
Respondents breached their duty of fair representation by
failing, refusing, and/or neglecting to process a grievance
for the Charging Party, Wilda J. Beshears, when her em-
ployment by InterRoyal was terminated by the Company.
B. The Facts
The essential facts in this case are, for the most part,
either admitted, undisputed, or documented. The Respon-
dent International has been the collective-bargaining rep-
resentative of the employees of InterRoyal for many years.
The Respondent Local was chartered by Respondent In-
ternational to represent the employees at InterRoyal. The
most recent collective-bargaining agreement between In-
terRoyal and International "For Local No. 3784" was exe-
cuted on May 6, 1974, and expires on May 5, 1976.1
The Charging Party, Wilda J. Beshears, was hired by
InterRoyal on August 1, 1973, and at all the times material
herein, she was a member of the collective-bargaining unit
at InterRoyal represented by the Respondents. On January
27, 1975,3 Beshears went on sick leave for a condition de-
scribed in her doctor's report to InterRoyal's insurance
carrier as: "Vulvo vaginitis; tear in right lower abdominal
hereby granted . and the transcript and the exhibit file have been corrected
accordingly.
2 G.C. Exh. 2.
3 All dates hereinafter refer to 1975 unless otherwise noted.
UNITED STEELWORKERS
wall; neuritis of right abdominal wall in wound site." Ac-
cording to the said report dated February 17, Beshears
"was continuously totally disabled" and would be "unable
to work from 1-27-75 thru 3-10-75.114 Notwithstanding the
said report, Beshears was still under her doctor's care and
had not been released by him to return to work when she
received a registered letter dated March 21 from Thomas
C. Sawyer, InterRoyal's personnel manager, which stated.
that she had been removed from the Company's "seniority
roles (sic)" as of March 11 because of her "failure to report
promptly after a leave of absence for work." 5 According to
Sawyer, he based Beshears ' termination on her doctor's
February 17 report to the insurance company quoted
above.
Upon the receipt of InterRoyal's letter on Saturday,
March 22, Beshears immediately tried to contact Respon-
dent Local's president , L. J. Watson, and InterRoyal's per-
sonnel manager , Sawyer, at their homes by telephone, but
she was unable to reach either of them. She finally reached
Watson by telephone on Monday, March 24, and read to
him the letter she had received from the Company. She
told Watson that she was still on sick leave, and that she
had not been released by her doctor (who is also the
Company's doctor) to return to work, and that she wanted
Watson to file a grievance with the Company on her be-
half. Watson told Beshears that he would check into the
matter and would call her back. He then contacted Person-
nel Manager Sawyer and asked him for an explanation of
the action he had taken against Beshears . Sawyer, in re-
sponse, showed Watson a copy of the insurance claim form
quoted above which Dr. Paul had signed on February 17
which stated that Beshears was totally disabled and would
be unable to return to work "thru 3-10-75." He also told
Watson that he regarded Beshears as having "quit" her
employment. In addition, in Watson's presence, Sawyer
called Dr. Paul's office and asked his nurse, Norma Smith,
to have the doctor send him "a written explanation" of
Beshears ' recent medical history, illnesses , and treatments.'
Beshears , in the meantime , went to her doctor's office that
same morning , and in his absence, she obtained from his
nurse on the doctor's prescription form, a statement dated
March 24, which read as follows: "Patient has been under
my care from 1-27-75. Patient has not been released for
work. May not return to work until further notice. L.G.
Paul, M.D." The statement was subscribed by Dr. Paul's
nurse with her initials "N.S." 7 Later that same morning,
Beshears again telephoned Watson and told him that she
had been to the doctor's office and had obtained "a slip"
that she was still on sick leave. According to Beshears,
whom I credit in this respect, Watson replied that he didn't
give a damn what Beshears had, and that he had seen the
insurance form which indicated in "black and white" that
she could return to work on March 11. Beshears offered to
4 See Resps . Exh. 5.
5 See G .C. Exh. 3.
6 Although Sawyer then admittedly was aware that Beshears was claiming
that she had not yet been released by the doctor to return to work, he did
not ask the nurse whether Beshears' claim was true, assertedly because. "I
wasn 't interested in anything the nurse could tell me, I wanted a document
from the doctor."
r See Resps. Exh. 2.
1187
read "the doctor's slip" to Watson, but he said that he
didn't want to hear it. Beshears then offered to bring the
slip to the Company's office, but Watson said that he
didn't want to look at it, and that furthermore, she had
been fired and was no longer allowed on company proper-
ty. Beshears asked Watson how much time remained to file
a grievance, and he laughed and replied, "Your time has,
just run out." Watson finally told Beshears that if she got
the matter "straightened out" with the insurance company,
she would have no trouble getting her job back .8
During the rest of the week of March 24, Beshears had
several telephone conversations with Watson during the
course of which she repeatedly requested Watson to file a
grievance against the Company for terminating her em-
ployment. According to Beshears' credited testimony, in
one such conversation, when she in a loud voice demand-
ed, "L.J. [Watson], I want a grievance filed." Watson re-
sponded, "I will not file a grievance for you," and he slam-
med down the receiver and thus ended the conversation.
Thereafter, despite repeated attempts, Beshears was unable
to contact Watson by telephone again.
In compliance with Personnel Manager Sawyer's request
to his nurse, on March 28, Dr. Paul sent a letter to Inter-
Royal's insurance carrier, a copy of which was seen by
Sawyer 2 or 3 days after its date. The letter stated as fol-
lows:9
March 28, 1975
To Whom It May Concern:
Re: Wilda Beshears
The above patient was seen on January 27, 1975, for
neuritis of the right lower abdominal wall secondary
to the patient's surgery. The patient was seen on Janu-
ary 13, 1975 and on January 17, 1975, with improve-
ment. It was on this basis that it was anticipated the
patient would be able to return to work on March 10,
1975 and inadvertently on the insurance form that was
signed it was so indicated. Unfortunately, the patient's
progress has not been good.
The patient was further seen on February 27, 1975,
with recurrence if not exacerbation of her problem,
and again was treated. The patient is to be seen again
this week for continued pain and tenderness plus
weakness of the right lower abdomen.
Sincerely,
(Signed) Leonard G. Paul, M.D.
Since the receipt of Dr. Paul's letter of March 28, Sawyer
admittedly has taken no action to restore Beshears' em-
ployment status, and although, according to Sawyer, he
8 Watson denied telling Beshears that he was disinterested in seeing or
hearing the statement she had received from Dr. Paul's office , and he also
denied telling her that she was not allowed to come on company property. I
do not credit these denials for I regard Watson 's testimony as sometimes
equivocal , at others evasive, and occasionally inconsistent and implausible.
I therefore regard his testimony as less reliable than that of Beshears whom
I credit in most respects and in this regard.
9 See G.C. Exh. 4. In view of the context in which the dates January 13,
1975, and January 17, 1975 , appear in the first paragraph of Dr. Paul's
letter, it is obvious that these dates refer to visits made by Beshears to the
doctor after the initial visit on January 27, and thus undoubtedly were
intended to refer to February 13 and 17, 1975.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
showed a copy of Dr. Paul's letter to Watson, the latter has
not filed a grievance with the Company to protest Besh-
ears' termination . On April 11, Beshears visited Inter-
Royal's personnel office and gave Sawyer a slip from Dr.
Paul dated that day which stated that Beshears had been
under his care and could return to work on April 14. 11
After reading the doctor's slip , Sawyer told Beshears that if
she was recalled , it would , in all likelihood , be on a layoff
status, but that in any event, he was not prepared to change
his position regarding the letter terminating her employ-
ment.
The following Monday, April 14, Beshears sent a letter
to Watson by certified mail in which she again requested
that a grievance be filed with InterRoyal for terminating
her employment. The letter, erroneously dated March 14,
read as follows: II
March 14, 1975
Mr. L.J. Watson
I want a griviance [sic] filed against the Co. For Firing
Me, Against Union Rules . I was not given the 5 days
Notice. I had no way of Knowing a mistake had been
made by my Dr. He Had told me I Could not return
to work. The only return to work slip I had, I turn [sic]
in Friday April 11, 1975 to Mr. Sawyer.
Thank you
Wilda J. Beshears
Since the receipt of Beshears' letter, the Respondents ad-
mittedly have taken no further action and have filed no
grievance with InterRoyal to protest her discharge, and In-
terRoyal has not reinstated her to employment status.
C. The Contentions of the Parties
The General Counsel contends that the Respondents
violated their duty to fairly serve and represent the inter-
ests of all their bargaining unit employees without hostile
discrimination against any of them, by failing and refusing
to file and process a grievance to protest InterRoyal's ter-
mination of Beshears ' employment , and that the Respon-
dents thereby engaged in unfair labor practices within the
meaning of Section 8(bXIXA) of the Act.
The Respondents contend that Local President Watson
in effect orally processed the first -step grievance procedure
in their collective-bargaining agreement with InterRoyal
by questioning Personnel Manager Sawyer regarding the
reasons for his action against Beshears . They contend fur-
ther that Watson did not, and in effect could not, process
this grievance further because Beshears did not furnish him
with evidence , within the 7-day time limitation set by the
contract , to appeal the grievance to step 2, to counteract
Dr. Paul's insurance form which indicated that she would
be able to return to work after March 10. In addition, the
Respondents contend that the General Counsel has failed
to establish that the failure to process a grievance for Besh-
ears was motivated by hostility to her. The Respondent
International finally contends that it is not in any event
1o See G.C. Exit. 5.
11 See G.C. Exh. 6.
responsible for the inaction of the Respondent Local in
respect to Beshears ' requests that a grievance be processed
over the termination of her employment by InterRoyal.
D. Analysis and Concluding Findings
The principles of law which govern the issue in this case
are well settled. A union which enjoys the status of exclu-
sive collective-bargaining representative is required to
serve the interests of all the employees in the bargaining
unit fairly, in good faith, and without hostile discrimina-
tion , and it breaches that duty of fair representation when
its conduct towards a member of the bargaining unit is
arbitrary, discriminatory, or in bad faith.12 A union's duty
of fair representation includes the obligation to act as ad-
vocate for the grievant.13 The duty "may be breached not
only by action, but by inaction as well, such as the refusal
to process a grievance." 14 In Vaca v. Sipes, supra, the Su-
preme Court stated at 191:
[A] union may not arbitrarily ignore a meritorious
grievance or process it in a perfunctory fashion... .
And, in Ruzicka v. General Motors Corp., et al.,15 the court
of appeals stated as follows:
When a union makes no decision as to the merits of an
individual's grievance but merely allows it to expire by
negligently failing to take a basic step towards resolv-
ing it, the union has acted arbitrarily and is liable for
a breach of its duty of fair representation.
Applying the foregoing principles to the facts established
by the record in this case, it is quite evident that there has
been a total failure and refusal on the part of the Respon-
dents to file and process a grievance for Beshears over the
peremptory termination of her employment by InterRoyal,
that the refusal was based on hostility to Beshears, and that
the Respondents thereby breached their duty of fair repre-
sentation. I base these conclusions on the following consid-
erations.
Beshears' employment was terminated by InterRoyal al-
legedly because she did not return to work on March II
from a leave of absence caused by her medical disability.
InterRoyal based its action on a prognosis which had been
sent by Beshears' doctor to InterRoyal's insurance carrier
on February 17 which stated that she would be unable to
work "thru 3-10-75." 16 Her termination was effected by
Personnel Manager Sawyer without any inquiry either as to
whether the doctor's forecast had proved to be correct, or
as to whether Beshears had in fact been released by the
doctor to return to work. In fact, the doctor's prognosis
had not been accurate, and Beshears was still under the
12 Miranda Fuel Company, Inc., 140 NLRB 181, 185 (1962); Vaca v. Sipes,
386 U.S. 171. 190 (1967).
13
Truck Drivers, Oil Drivers, etc. Local 705 (Associated Transport, Inc.).
209 NLRB 292 (1974).
14 Local 12, United Rubber, Cork, Linoleum, & Plastic Workers of America.
AFL-CIO (Goodyear Tire & Rubber Co. of East Gadsden, Ala.). 150 NLRB
312, 315 ( 1964).
15 90 LRRM 2497, 2500 (C.A. 6, Sept. 23, 1975).
16 Although the letter sent to Beshears on March 21 by Sawyer merely
stated that she had been removed from InterRoyal 's "seniority roles (sic)."
it is evident that it was intended as a notification of the termination of
Beshears ' employment.
UNITED STEELWORKERS 1189
doctor's care when she received InterRoyal 's letter. Upon
receipt of that letter , Beshears immediately notified Re-
spondent Local Union President Watson that she had not
been released by her doctor to return to work, and she
undisputedly requested him to file a grievance with the
Company on her behalf to protest her termination. In re-
sponse to Beshears ' request , the sum total of what Watson
did was to ask Sawyer the reason for his action , as a result
of which he was shown the insurance form dated February
17 in which the doctor had forecast that Beshears would be
"unable to work thru 3 -10-75." According to Personnel
Manager Sawyer who testified for the Respondents, who
obviously bore them no antipathy , and whom I credit in
this regard , Watson did not file a grievance with Inter-
Royal to protest the Company's action against Beshears,
and Sawyer "didn't view" Watson's inquiry about Besh-
ears' termination "as a grievance ." 17 Watson did not there-
after investigate the veracity of Beshears ' claim that she
was still under the doctor's care and had not been released
by him to return to work . In fact , Watson did not even call
the doctor's office to find out if Beshears had told him the
truth in this regard . And, when Beshears offered to read to
Watson a slip which she had obtained from the doctor's
nurse on March 24 which stated that she had not been
released for work and was not to return to work "until
further notice ," Watson demonstrated his hostility to Besh-
ears by telling her that he "didn't give a damn" what she
had and didn't "even want to hear it." Moreover, when
Beshears inquired as to how much time she had to file a
grievance , Watson further demonstrated his hostility to her
by saying, "Your time has just run out." 18
As previously noted, on March 28 , Beshears ' doctor no-
tified InterRoyal through its insurance carrier that his prior
prognosis that Beshears might be well enough to return to
work on about March 11 had been too optimistic , and that
she was still under his care . Although this notice was
shown to Watson by Sawyer , and Watson thus knew that
Beshears ' claim that she had not been released by her doc-
tor to return to work had merit , he still did not file a griev-
ance to protest the Company's action , action which was
based on her failure to return to work . When Beshears was
released by her doctor on April 11 to return to work on
April 14, she was advised by Sawyer that he nevertheless
would not change his position regarding her termination.
Accordingly, on April 14, Beshears once again requested
Watson , this time by certified mail, to file a grievance with
the Company to protest her discharge . Watson admittedly
never contacted Beshears after the receipt of her certified
letter , and he admittedly did not thereafter file the request-
ed grievance.
The grievance which Beshears sought to have the Re-
spondents file and process for her clearly was meritorious.
The contract between InterRoyal and Respondent Interna-
17 As noted and discussed infra, the Respondents contend that Watson's
inquiry on March 24 about Beshears ' termination constituted the initiation
of the first step of the contract's grievance procedure which, it is contended,
mai be oral.
1 Watson's hostility to Beshears quite apparently originated from repeat-
ed complaints which she had made to him during her employment by Inter-
Royal regarding unfair work assignments as a result of which he accused
her of "just bitching."
tional provides in section XI that in instances in which the
Company concludes that an employee's conduct warrants
discharge, it must first suspend him for not more than 5
days and on request afford him a hearing during the sus-
pension period. As found above, the action taken by Inter-
Royal against Beshears was the equivalent of a discharge. 19
InterRoyal nevertheless did not first suspend Beshears be-
fore terminating her employment. She therefore had a mer-
itorious grievance over the failure of InterRoyal to first
suspend her and afford her a hearing before terminating
her employment 20 Watson admittedly did not protest the
Company's failure to follow this contractually provided
procedure. Moreover, the record also clearly discloses that
Beshears was still on sick leave based on medical disability
and had not been released by her doctor to return to work
when she was terminated for failure to report promptly on
March 11 after a leave of absence. She thus also had a
meritorious grievance in respect to the substantive ground
on which her employment was terminated.
The Respondents now contend that they did not comply
with Beshears' April 14 request because Watson had al-
ready instituted an oral grievance on her behalf on March
24, and the time to appeal to the second step of the griev-
ance procedure (7 days) had expired. I reject this conten-
tion as devoid of merit for as found above on Sawyer's
credited testimony, the Respondents filed no grievance
with InterRoyal, either oral or written, to protest the action
taken against her. I therefore conclude that by ignoring her
repeated requests that a grievance be filed, the Respon-
dents breached their duty of fair representation and there-
by engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) of the Act 2[•
Moreover, even assuming, arguendo, that Watson's
March 24 inquiry of Sawyer regarding the reason for Inter-
Royal's action against Beshears constituted the institution
of the first step of the grievance procedure under the con-
tract, I would nevertheless hold that the Respondents pro-
cessed this grievance in a perfunctory and negligent fash-
ion, and that they thereby breached their duty of fair
representation. I base this conclusion on the following con-
siderations:
Under the terms of the Respondents' contract with In-
terRoyal, assuming Sawyer had rejected Watson's oral
grievance for Beshears, it was incumbent upon the Respon-
dents to appeal the rejection within 7 days to further pro-
cess the grievance to the second step of the grievance pro-
cedure. However, after thus allegedly instituting the
19 Sawyer testified that he regarded Beshears as having quit. However,
neither the letter sent by Sawyer to Beshears nor the Company 's records
indicate that she had quit, and it is obvious that she had not. I therefore
place no credence in Sawyer's testimony in this respect.
20 Sawyer testified that this provision of the contract applied to "excessive
absenteeism , misconduct and similar alleged conduct ," and that Beshears'
alleged failure to report to work promptly after her leave of absence was not
the type of "misconduct" to which this provision applies. I can perceive no
valid distinction between the misconduct of excessive absenteeism and that
of overstaying a leave of absence . Moreover, I find nothing in this provision
of the contract which supports the limited construction which Sawyer's tes-
timony applies to it . In the light of Sawyer 's letter which effectively dis-
charged Beshears, I reject as incredible Sawyer's testimony that section XI
did not apply to Beshears' termination.
21 Vaca v. Sipes, supra; Miranda Fuel Company, supra; Local 12, United
Rubber, Cork, Linoleum, etc., supra.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance, Watson did not either investigate its merits or
do anything to process it further. As noted above, on
March 28, Dr. Paul notified InterRoyal through its insur-
ance carrier that his prior prognosis regarding the duration
of Beshears' medical disability had been unduly optimistic
and that she was still under his care. A copy of Dr. Paul's
letter of March 28 (4 days after the alleged grievance was
instituted) was shown to Watson by Sawyer, and Watson
thus knew that the grievance which he allegedly had insti-
tuted for Beshears had merit. Watson nevertheless failed
either to then promptly process the grievance to the second
step of the grievance procedure, or even to ask for an ex-
tension of time to do so. The Respondents have offered no
explanation for Watson's failure to proceed with the al-
leged grievance after seeing Dr. Paul 's letter of March 28.
As further noted above, after Beshears was released by
the doctor to return to work, and she reported ready, will-
ing, and able to work, Sawyer refused to reinstate her, and
she then promptly requested Watson by certified mail to
file a grievance to protest the Company's action. Watson
didn't file the requested grievance, indeed, he didn't even
bother to contact Beshears to tell her why he was not doing
so, assuming he had a valid reason therefor . The Respon-
dents now contend that they did not comply with Beshears'
request because they had already filed an oral grievance
for Beshears on March 24 and the time to file an appeal to
the second step of the grievance procedure had expired. I
reject this contention as devoid of merit.
Under the terms of the collective-bargaining agreement,
grievances may be initiated within 30 days after the em-
ployee affected or the Union became aware of the event on
which the grievance is based .22 Beshears first became aware
of InterRoyal's action against her on March 22 when she
received Sawyer's letter dated March 21. Accordingly, the
time to file a grievance on her behalf to correct the action
then taken did not expire until April 21. Thus, even assum-
ing that she had not previously asked Watson to file a
grievance to protest the Company's action, which she un-
disputedly did, Beshears' April 14 request was timely.
Moreover, even if Watson had filed an oral grievance for
Beshears on March 24 based on Sawyer 's March 21 letter,
InterRoyal's refusal to reinstate Beshears on April 11 when
she reported ready, willing, and able to work, could and
should have been regarded by the Respondents, her collec-
tive-bargaining representative , as the basis for a new griev-
ance, and they should have relegated the procedural defen-
ses of timeliness , which could have been waived, to be
raised by the Company if it so desired 23
I conclude from all the foregoing that even assuming,
arguendo, that Watson filed an oral grievance for Beshears
on March 24 (and I am convinced by the entire record that
he did not), the Respondents nevertheless breached their
duty of fair representation by the perfunctory and negli-
gent manner in which they processed the grievance, by al-
lowing it to expire, and by arbitrarily failing and refusing
to file a new grievance for Beshears upon her request when
she was denied reemployment upon application.24 I would
22 G.C. Exh. 2 (p.30).
23 Local No. 453, International Molders and Allied Workers Union, AFL-
CIO (Josam Mfg. Co.), 208 NLRB 869, 872 (1974).
accordingly find that the Respondents thereby engaged in
unfair labor practices within the meaning of Section
8(b)(I)(A) of the Act.25
There remains for consideration the contention that the
Respondent International is not liable for the failure and
refusal of Respondent Local's President Watson to process
a grievance over Beshears' termination. I find no merit in
this contention. Respondent International is admittedly the
certified collective-bargaining representative of Inter-
Royal's production and maintenance employees. The col-
lective-bargaining agreement covering the terms and con-
ditions of employment of the employees in the said unit is
between InterRoyal and the Respondent International. It
is undisputed that the Respondent Local was chartered by
Respondent International to act for it as the representative
of InterRoyal's employees.26 Although the collective-bar-
gaining agreement refers to the Respondent International
as "the Union," in actual practice, the Respondent Local's
officers and stewards act on behalf of the Respondent In-
ternational in implementing the contract and in processing
grievances "prior to the third step." 27 In the light of these
circumstances, it is quite clear, and I find, that the Respon-
dent Local is an agent of the Respondent International
both in the implementation and enforcement of the collec-
tive-bargaining agreement covering InterRoyal's employ-
ees, and in the processing of grievances.28 I therefore find
both Respondents had the duty to fairly represent and
serve the interests of the employees of InterRoyal, and
both are responsible for the breach of that duty by Respon-
dent Local's President Watson.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent Unions set forth in sec-
tion III, above, occurring in connection with the operations
of InterRoyal described in section I, 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.
V. THE REMEDY
Having found that the Respondent Unions have en-
gaged in certain unfair labor practices, I will recommend
that they cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the Act.
The General Counsel requests an order requiring the Re-
spondents to proceed promptly to arbitration over the pro-
24 Vaca v. Sipes, supra; Ruzicka v. General Motors Corp., supra; Local /2,
United Rubber, Cork, Linoleum, etc., supra.
25 Miranda Fuel Company, supra.
26 See Resps . br., p. 2.
27 Philip Pynaert, a staff representative of Respondent International, testi-
fied that the International first becomes involved in the grievance procedure
at step three.
28 See International Union, United Automobile, Aerospace and Agriculture
Implement Workers, and its Local 422 (Crow Construction Company), 192
NLRB 808 (1971); Local Lodge No. 40, International Brotherhood of Boiler-
makers. Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, 197
NLRB 738 (1972).
UNITED STEELWORKERS 1191
priety of Beshears ' termination. Under the terms of the
contract between InterRoyal and the Respondent Interna-
tional, the time to file and process a grievance for Beshears,
and to proceed to arbitration over it, has long since ex-
pired, and it is extremely unlikely that InterRoyal will now
waive the time limitations in the contract. Moreover, in the
light of Watson's obvious hostility to Beshears, it is not
reasonable to expect that he will now covert into an effec-
tive advocate for her. Nevertheless, in view of the backpay
order which I recommend, I will first require the Respon-
dents to attempt to obtain her reinstatement through the
grievance and arbitration procedure.
Beshears first requested the Respondents to file a griev-
ance over her termination on March 24, 3 weeks before she
was finally released by her doctor to return to work on
April 14. If the Respondents had acted promptly, fairly,
and as an advocate on her behalf, as their duty to fairly
represent her required, Beshears' meritorious grievance
quite likely would have been resolved in her favor and her
employment status would have been restored by the time
she was released by her doctor and she reported that she
was ready, willing, and able to work on April 14. Under
these circumstances, the loss of earnings which Beshears
has suffered since that date appears to be directly attribut-
able to the failure and refusal of the Respondents to fairly
and promptly represent her. I will therefore also recom-
mend that the Respondents make Wilda J. Beshears whole
for any loss of earnings which she may have suffered as a
result of her discharge by InterRoyal from April 14, 1975,
until she either obtains reinstatement to her former posi-
tion or secures other substantially equivalent employment.
Backpay is to be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950), with in-
terest at the rate of 6 percent per annum as prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. InterRoyal Corporation is an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondents , United Steelworkers of America, AFL-
CIO, and Local 3784 , United Steelworkers of America,
AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
3. Respondent Local 3784, United Steelworkers of
America , AFL-CIO, and its president , L. J. Watson, are
agents of Respondent United Steelworkers of America,
AFL-CIO, for the implementation and enforcement of the
collective-bargaining agreement between InterRoyal Cor-
poration and United Steelworkers of America , AFL-CIO,
and for the processing of grievances under the said agree-
ment.
4. By failing and refusing to honor the request of Wilda
J. Beshears that a grievance be filed and processed over the
termination of her employment , the Respondents have re-
strained and coerced Beshears in the exercise of rights
guaranteed by Section 7 of the Act, and have thereby en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, I
hereby issue the following recommended:
ORDER29
Respondents, United Steelworkers of America, AFL-
CIO, and Local 3784, United Steelworkers of America,
AFL-CIO, Michigan City, Indiana, their officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing any employee in the exercise
of his rights under Section 7 of the Act by refusing to file
and process a grievance because of hostility to the employ-
ee or for any similar reason.
(b) Restraining or coercing employees in any like or re-
lated manner in the exercise of their right to engage in or to
refrain from engaging in the concerted activities guaran-
teed to them by Section 7 of the Act, except to the extent
that such right may be affected by an agreement author-
ized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the purposes of the Act:
(a) Request InterRoyal Corporation to consider a griev-
ance concerning the termination of Wilda J. Beshears as of
March 11, 1975, and to reinstate her to her former or sub-
stantially equivalent position, and take such grievance to
arbitration to assure that Beshears' rights under the collec-
tive-bargaining contract in effect at the time of her dis-
charge are vindicated.
(b) Make Wilda J. Beshears whole for any loss of earn-
ings she may have suffered as a result of her discharge by
InterRoyal Corporation, from April 14, 1975, when she
was ready, willing, and able to work until such time as she
is reinstated by InterRoyal Corporation or obtains other
substantially equivalent employment, whichever is sooner,
together with interest at the rate of 6 percent per annum,
all to be computed in the manner set forth in the section of
"this Decision entitled "The Remedy."
(c) Post at their business offices and meeting halls in
Michigan City, Indiana, and at all places where notices to
their members and other employees in the bargaining unit
customarily are posted (including all such places in Inter-
Royal's plant) copies of the attached notice marked "Ap-
pendix." 30 Copies of said notice, on forms provided by the
Regional Director for Region 25, after being signed by offi-
cials of the Respondents, shall be posted by them immedi-
29 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
30 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the works in the notice reading "Posted by
Order of the National 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."
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ately upon receipt thereof, and be maintained for at least Regional Director shall make available for posting by In-
60 consecutive days thereafter . Reasonable steps shall be terRoyal Corporation at its plant, if it be willing.
taken by the Respondents to insure that said notices are (d) Notify the said Regional Director, in writing, within
not altered , defaced , or covered by any other material. The 20 days from the date of this Order, what steps have been
Respondents shall also sign copies of the notice which the taken to comply therewith.