United Steelworkers Of America And Its Local 8888, Afl-Cio (Newport News Shipyard And Dry-Dock Co./Tenneco)

National Labor Relations Board - Board Decisions

Mar 20, 1989

293 N.L.R.B. 348 (N.L.R.B. 1989)

348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United Steelworkers of America and its Local 8888,
AFL-CIO (Newport News Shipyard and Dry-
dock Company/Tenneco) ' and Clyde A John-
son Case 5-CB-5790
March 20, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 20, 1988, Administrative Law
Judge Thomas A Ricci issued the attached deci-
sion The General Counsel filed exceptions and a
supporting brief, and the Respondent filed a memo-
randum brief in opposition to the General Colin
sel'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, 2 and
conclusions3 and to adopt the recommended
Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis
missed
t The name of the Respondent appears as stated in the amended coin
plaint
2 In sec III par 2 of his decision the judge found that Respondents
grievance committeeman Willie Futrell discussed Charging Party Clyde
Johnson s grievance with Futrell s superiors the Respondent s grievance
chairman Robert Moore and the Employers manager of labor relations
Edward Merkling In fact Merkling is not Futrell s superior and the two
men never discussed the Johnson grievance In sec III par 15 the judge
found that Moore testified that this was the first time in Moore s expen
ence that an employee had admitted a theft Moore actually testified that
he believed this was the first time every work rule violation alleged by
the Employer was admitted by an employee We correct the errors
which do not affect the outcome of the case
3 In agreeing with the judge that the Respondent did not arbitrarily fail
to process Johnson s grievance in violation of Sec 8(b)(1)(A) of the Act
we note that Merkling testified without contradiction that Moore con
tacted Merkling and interceded on Johnson s behalf Merkling also testi
fled that he informed Moore that Johnson had stolen Navy property and
had resisted apprehension Futrell testified without contradiction that he
saw the employee statements supporting the Employers case against
Johnson and that Futrell conducted an independent investigation of the
matter Thus the testimony of Merkling and Futrell fully supports the
conclusion that Moore had a reasonable basis for his decision to with
draw Johnson s grievance and was not acting arbitrarily when he made
that decision
Paula S Schaeffer Esq for the General Counsel
Franklin G Shuler Esq (Copper Mitch & Crawford) of
Birmingham Alabama for the Respondent
DECISION
STATEMENT OF THE CASE
THOMAS A Ricci, Administrative Law Judge A hear
ing in this proceeding was held at Newport News, Vir
ginia on May 3 1988, on complaint of the General
Counsel against United Steelworkers of America and its
Local 8888, AFL-CIO (the Respondents or the Union)
The complaint issued on January 22, 1988 based on a
charge filed on August 17, 1987 by Clyde A Johnson
(the Charging Party) The essential issue presented is
whether the Union failed to process a grievance filed by
Johnson and thereby violated Section 8(b)(1)(A) of the
Act
On the entire record and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
Newport News Shipyard and Drydock Company for
whom the Charging Party worked, and whose employ
ees are represented by the Union in collective bargain
ing is engaged in the construction and repair of ocean
going vessels During the 12 months preceding issuance
of the complaint a representative period, in the course of
its operations, the Company purchased and received at
its Newport News Virginia facility products goods and
materials valued in excess of $50 000 directly from points
outside the State of Virginia I find that Newport News
Shipyard and Drydock Company is an employer within
the meaning of the Act
II LABOR ORGANIZATION INVOLVED
I find that United Steelworkers of America and its
Local 8888 AFL-CIO are labor organizations within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICE
On July 9 1987 Johnson who had worked for 10
years for this Company became involved in an incident
which resulted in the Company s charging him with
having violated four of the work rules then in effect-
stealing company property refusing to follow instruc
tions or directions of the foreman or supervisor, fighting
on company property, and threatening intimidating or
coercing another employee by word or act The rules
stated that the employee could be discharged or other
wise disciplined for violation of any of those rules The
next day, on July 10, Johnson was suspended for 3 days
because of those charged offenses After Johnson had re
turned to work on July 15 he was discharged
That same day with the assistance of Willie Futrell, a
union committeeman Johnson filed a grievance through
the Union After the first step in the established griev
ance procedure there was a lengthy discussion between
Futrell and Christine Woodson the Company s person
nel representative The company representative refused
to reinstate Johnson Futrell then talked the matter over
with his superiors Robert Moore and Edward Markling
293 NLRB No 43
STEELWORKERS LOCAL 8888 (NEWPORT NEWS) 349
The result of the Union s investigation of the matter was
that it decided to drop the entire grievance It decided
not to process it to the second step of the established
procedure, which would have been a further meeting
and discussion between the Union and company repre
sentatives Johnson was not returned to work
We start by looking at what happened on July 9
Johnson was sent to a room on the ship to gather tools
and things and to move them away It was a navy ship
The room was also used as an eating place by the navy
personnel As he was leaving Johnson picked up a pack
age of potato chips and put them in his pocket It was
property of the Navy As Johnson was leaving a naval
officer told him to return the chips Johnson put it back
and again started to leave The officer then asked who
Johnson s foreman was, but Johnson did not answer and
continued on his way out At that point the officer took
Johnson s badge-which bore his identification number-
from the man's suit It was the logical thing to do, for
this service company employs 18 000 people all over the
Newport News Shipyard, and it would have been diffi
cult for that naval officer to locate Johnson later John
son resented what the officer had done and snatched the
badge out of his hands At this point the two men got
into a fight with Johnson trying to keep the badge and
the other man trying to get it back They went to the
floor, hitting one another Then another man entered the
room and separated them, and Johnson left the place It
was what happened in that room that day that resulted
in both the 3 day suspension and the discharge
As stated above, after the lengthy discussions between
Union Agent Futrell and Management Agent Woodson
at the first stage of Johnson s discharge grievance, and
after the higher officers of the Union had considered all
the facts and conflicting contentions between the two
parties as to exactly what had happened, the Union de
cided to drop the grievance before going to the second
step, which would had been further discussions about the
merits of the discharge The complaint allegation that it
was an unfair labor practice for the Union to have
dropped that particular grievance at step two is double
barried first, because it did so in retaliation against John
son for not being a union member and second, because
its action was Arbitrary Capricious Invidious' If the
Union s reason really was the first no citation of author
ity is necessary, for that would have been unlawful with
out question at this late date M Eskin & Son 135
NLRB 666 (1962) As to the second contention the Gen
eral Counsel cites a great number of cases decided by the
Board, in which it found a union s action Arbitrary, Ca
pricious and Invidious The trouble with these citations
is that in an area such as this no two cases are alike and
therefore no preceding citation really fits a later case In
the light of the record in its entirety-not only the se
lected, out of context selection made by the General
Counsel-I find neither conclusionary allegation to have
been proved in this case
The General Counsels entire case focuses on the fact
that one of the four work rules that Johnson was
charged with having violated was rule 1-stealing com
pany property Johnson was not a member of the Union
Virginia is a right to work State Of the 18 000 employ
ees covered by the contract between the Union and this
Company, 45 percent are nonunion members-8100' The
union agents who handle grievances testified they proc
ess about 2000 grievances each year After examining the
Union s comprehensive records-thousands of them-the
General Counsel selected five grievance records and
placed them into evidence
In 1984 two employees-David Greene and David
Knox-were discharged for violations of rule 1 theft
and both were reinstated without backpay in the course
of the grievance procedure In 1985 the same thing hap
pened to another employee-Gregory Dane also in the
grievance procedure In 1986 a man named David
Braddy was also fired for theft and reinstated with no
backpay via the grievance procedure The last company
record offered by the General Counsel involved an em
ployee named Jane Burton She too was discharged for
violating rule 1 Her grievance was taken to step 4 of the
grievance procedure, when the Union decided to drop
the grievance altogether Burton was never returned to
work
The argument here is that if the Union succeeded in
winning the jobs back for the first four of these employ
ees, why did it not continue to push Johnson s grievance
with the hope of winning it as it did the others9 Also, it
could at least have gone to step 4 before dropping it as
it did for employee Burton To me this last record tells
another story Burton was an elected committeewoman
of the Union for the janitorial service unit The Union
chose not to go to arbitration for Burton, and abandoned
her hopes If a union can drop the grievance of one of its
elected officers, it shows that it is the merits of the griev
ance that governs its decision, and not the membership
or nonmembership of the grievant
The only evidence of antiunion animus against John
son-called direct evidence by the General Counsel-is
the following Futrell the union agent knew Johnson
was not a union member Twice in the past he had asked
Johnson to sign up with the Union and the man had re
fused Who knows how many others of the thousands of
members in the workplace Futrell had also solicited with
no results On July 15, after Futrell had talked at length
with Personnel Manager Woodson to take back the dis
charge notice, and while he was helping Johnson fill out
the grievance papers, Johnson asked him, as Johnson tes
tified Would it be in my best interest to join the steel
worker " Futrell said Yes, and Johnson filled out a
membership card then and there What the General
Counsel proved by offering this testimony is that when
the union officers decided to drop Johnson's grievance
they knew he was a union member They also knew he
had joined the Union of his own volition With this reali
ty in mind what becomes of the complaint allegation
that the Union dropped that man s grievance because he
was not a member of the Union?
But aside from the total absence of evidence of illegal
purpose in the Union's treatment of this one grievance
there is the most convincing evidence that this Union
pays no attention to membership or nonmembership in
the enforcement of its overall collective bargaining con
tract From 1985 to the time of the hearing in this pro
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ceeding the Union dropped 44 grievances involving dis
charges after the first step in the grievance procedure, as
it did Johnson s (As evidenced by the formal record
documents received in evidence pertaining to those
grievances, accepted by stipulations of all parties) Thirty
of the forty four involved union members Only 14 in
volved nonunion members Considering the percentage
of members against nonmembers in this workplace, if
anything those documents show that the Union is less
sensitive to the interest of its members than it is to the
nonmembers'
We come to the alternative theory of the complaint,
that the Union acted arbitrarily and that it treated John
son's grievance unfairly and thereby breached its duty
of fair representation to that one employee This argu
ment rest entirely on a single out of context exhibit in
this record When Johnson was suspended for 3 days on
July 10, the Company s statement listed violations of four
work rules as the reason Yard Regulations #1 Stealing
company property or property of another employer (2)
Yard Regulation #4 refusal to follow instructions or di
rections of a foreman or supervisor (3) Yard Regulation
#7 fighting on company property (4) Yard Regulation
#11-Threatening, intimidating, coercing an employee
by word or act That notice also read, Suspension
pending discharge meeting When, on July 15 Johnson
was actually discharged after consulations between com
pany and union representatives, the notice spoke of only
one work rule violation- Yard Regulation #1-Stealing
company property or property of another employee
(government property) If one looks only at that one
exhibit in this record one cannot help asking-how
could the theft of a package of chips worth only 25 cents
justify a discharge in the minds of the union agents rep
resenting Johnson Ridiculous says the General Counsel
If that was all that was involved one could reasonably
say the Union acted unfairly in dropping the grievance at
an early stage of the proceeding The truth is as the
record evidence considered in its entirety shows beyond
question that the Company first suspended Johnson and
then fired him, for much more misconduct than the mere
taking of a package of potato chips
To start with when Johnson was suspended-for vio
lating all four of the enumerated work rules-the notice
to read Suspension pending discharge This means, of
course that the management were considering whether
to discipline Johnson because of all four work rule viola
tions Committeeman Futrel testified that when he dis
cussed the suspension action with Woodson she argued
all four rules violations in justifications of that action
From his testimony
We argued backwards and forward about the four
different Yard Regulations And when she wrote
the slip out, she wrote the slip out that day she sus
pended him 3 days pending discharge for the four
different Yard regulations on that day, and we dis
cussed this backwards and forth And it was a
pretty lengthy meeting
Q Approximately how long?
A I would say from 45 minutes to an hour
And on the day of the discharge July 15, before John
son decided to file his grievance, Futrel had another
lengthy discussion with Woodson, trying to have the dis
charge notice taken back Again from his testimony [i]n
the meeting we argued about the different types of yard
regulations that she had suspended him for and she went
right down the yard regulations 1 all the way through
11, the ones she had cited And we argued backwards
and forwards and at the end of that meeting she suspend
ed him for yard Regulation 1 This is the clearest evi
dence that Johnson was discharged for all four rule vio
lations and not only rule 1 The discharge notice men
tions only the theft, rule 1 But there is another docu
ment received in evidence that is equally relevant In re
checking the grievance after the step 1 discussion, the
Company gave the Union a formal statement of its posi
tion on the discharge question It is dated July 21 and
details the fight Johnson got into with the company offi
cer when he refused to surrender his shield badge All
four rule violations are discussed in that document In
the end it reads
It is quite clear that the grievant violated Yard Reg
ulation #1 in stealing the chips from the navy mess
It is also quite clear that this theft precipitated the
ensuring tussle and eventual restraint of the griev
ant
The grievant was discharged for just proper cause
There is no violation of the labor agreement
CONTRACTUAL PROVISIONS RELIED
UPON Company
Article 6-management
Article 42-plant rules
Yard Regulation # 1, #4, #7 and # 11
The only explanation for management to have referred
only to rule 1 violation in the discharge notice must be
that that was the only violation-straight theft-that
Johnson admitted With the rules providing out right dis
charge for theft 1 violation there was no need for the
Company to have referred to any others of the rules vio
lated It knew that discharge on that single basis could
be defended to the end But the fact is that what the
Union had to consider when deciding on how to proceed
was the entire area of dispute between the parties in the
grievance procedure What really determines this case is
whether the Union acted rationally in the light of the
entire picture of what had happened and on all of which
the Respondent was relying
Of course always in a situation like this each side will
tend to argue conflicting versions of what happened the
company tending to blame the employee and the union
trying hard to exculpate him If the union officers decid
ed in this case that the Company was right , it is under
standable When the navyman removed Johnson s
number badge from his suit and was holding it in his
hands, he had no reason to tussle with Johnson It was
Johnson who wanted that badge back Who assaulted
whom? Who started the fight that led both men wres
tling on the floor? It had to be Johnson , for it was he
STEELWORKERS LOCAL 8888 (NEWPORT NEWS)
who was trying to get back the badge Where rule 11
says, Threatening intimidating, coercing another em
ployee by word or act it was meant to prohibit exactly
this kind of thing It was Johnson who started the
tussle as he called it with the other man Surely the
union agents , before deciding to drop the grievance, un
derstood that critical fact
Whatever the detailed facts may boil down to, it
cannot be said that the Union in this instance acted arbi
trarily, or unfairly, in the way it handled Johnson s
grievance In his brief the General Counsel cites many
cases in which the Board found unions to have acted im
properly in not processing a grievance beyond a certain
stage But this is not a question of pure law It is an area
of Board proceedings where no two cases are alike All
kinds of disputes apse in the workplace People are dis
charged for reasons without end If Johnson had at least
denied trying to steal something from the Company,
however small it may have been, at least the Union
would have been in a position to dispute the entire
charge against him Moore, the Union s grievance chair
man said , without contradiction that this was the first
351
time in his extended experience that the employee had
admitted the theft He said that was the major reason for
the Union s ultimate decision I cannot fault him
All things considered especially the great number of
grievances involving many members of the Union that
also had been dropped at the second stage of the proce
dure I can only say that the General Counsel has not
proved the case of capricious or unfair behavior by the
Union in its handling of this grievance
In conclusion, I shall recommend dismissal of the com
plaint
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed'
ORDER
The complaint is dismissed
' If 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