Amoco Texas Refined Co.

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1528 (N.L.R.B. 1980)

1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amoco Texas Refining Company and Richard Kobus. Case 23-CA-7405 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on February 12, 1979, by Richard Kobus, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 23, issued a complaint on April 11, 1979, which was subsequently amended on July 20, 1979, against Amoco Texas Refining Company, Respondent herein, alleging that Respondent had engaged in, and was engaging in, an unfair labor practice within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. In substance, the complaint, as amended, alleges that on or about September 7, 1978, Respondent, through its supervisor, R. C. McKee, suspended and thereafter discharged Kobus allegedly for refusing to take part in an in- terview without his union steward being present in violation of his Section 7 right as enunciated in N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975). On July 25, 1979, Respondent filed an answer to the amended complaint admitting the factual allegations of the complaint, denying the commission of any unfair labor practice, and re- questing that the Board either defer to an arbitra- tor's award purportedly resolving the dispute or dismiss the complaint in its entirety. On July 30, 1979, the General Counsel, Respond- ent, and the Charging Party entered into a stipula- tion in which they agreed that certain documents would constitute the entire record herein' and that oral testimony was not necessary or desired by any of the parties. The parties further waived a hearing before an administrative law judge and the issuance of an administrative law judge's decision and, by way of a Joint Motion for Summary Judgment, submitted the case directly to the National Labor Relations Board for findings of fact, conclusions of law, and an order based on the stipulated record. By Order dated November 16, 1979, the Board approved the stipulation of the parties and ordered the proceeding transferred to the Board. The Board, however, withheld ruling on the parties' T he stipulated record consists of the charge. the amended complaint. the answer to the amended complaint, the collective-bargaining agree- ment between Respondent and Oil. Chemical, and Atomic Workers Union, Local 4-449 (which represents the unit of employees in which Kohus worked). the arbitrator's decision and award dated February 1i 197'4, and the parties' joint motion to transfer the case to the Board. wVith respect to the arbitrator's decision and award. the parties agreed to be hound only by the arbitrator's factual findings and not by any legal con- clusions he may have drawn from said Findings. 251 NLRB No. 202 Joint Motion for Summary Judgment until it had an opportunity to consider any briefs the parties might wish to submit in support of their respective motions, and so notified the parties. Thereafter, the General Counsel and Respondent timely filed briefs in support of their motions. 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. On the basis of the stipulation, the briefs, and the entire record in this proceeding, the Board makes the following: Ruling on the Motions for Summary Judgment The facts, as stipulated by the parties, reveal that Kobus had been employed by Respondent from 1969 until his discharge on September 14, 1978. During that period, he had worked first as an oper- ator in a thermal cracking unit and subsequently, until his discharge, as a machinist trainee in Re- spondent's maintenance section. On September 7, 1978, Kobus was checked into work by Area Main- tenance Foreman Rodger McKee and assigned to a maintenance crew under the supervision of George Gorsen, another area maintenance foreman. 2 Some- time after lunch that same day, McKee appeared at the jobsite and found Kobus away from his as- signed location. After instructing Kobus to return to his location, McKee engaged in a conversation with another crewmember, Bill Henderson. On several occasions, however, Kobus interrupted McKee's conversation with Henderson. McKee, after telling Kobus to "shut up," asked Kobus to step aside for a private conversation.3 Kobus, how- ever, declined to do so without a union steward being present, stating, "If it's going to be discipline, I want a steward." McKee did not respond to Kobus' inquiry concerning the possibility of disci- pline, but instead persisted in his demand that Kobus speak privately with him, which Kobus re- peatedly refused to do without a union steward being present. McKee then left the work area.4 Shortly thereafter, McKee returned to the jobsite accompanied by Gorsen. In Gorsen's presence, he again asked Kobus to step aside for a private con- versation, to which Kobus again replied, "If it's going to be discipline, I want a steward." Gorsen then made the same request of Kobus, but the latter persisted in his refusal to do so without a 2 The complaint alleges, the answer admits, and we find that McKee and Gorsen are supervisors ithin the meaning of Sec 2(11) of the Act. I' t appears that other employees were present during this incident. 'he record seems to indicate that, after this first incident with McKee. Kobus spoke with Union Steward Bobby Galloway. who ad- vised Kobus to follow orders AMOCO TEXAS REFINING COMPANY 1519 union steward being present. Thereafter, McKee informed Kobus that he was being suspended in- definitely and that he could "now have the union steward of his choice." Several days later, representatives of Respondent and the Union met to discuss the September 7 inci- dent between Kobus and McKee and shortly there- after, on September 14, 1978, Kobus was dis- charged because of that incident and because of other disciplinary action which Respondent had taken against Kobus between November 1974 and April 28, 1978. On December 18, 1978, an arbitration hearing was held on a grievance filed by the Union on Kobus' behalf concerning his discharge.- Thereaf- ter, on February , 1979, the arbitrator issued his decision and award in which he found Kobus' re- peated interruption of McKee's conversation with Henderson unjustified and uncalled for and further found that his subsequent refusal to obey McKee's and Gorsen's orders to step aside for a private con- versation amounted to insubordination for which discipline was justified. He further found that "even if Kobus' insistence upon a steward was a well-taken position, he was still under an obligation to follow orders and voice his complaints in a proper form at a later date." However, the arbitra- tor also found that Kobus was entitled to an answer to his inquiry of whether or not the con- versations with either McKee or Gorsen would in- volve discipline. Accordingly, he concluded that for that reason, and apparently because Kobus' "in- subordination was not exacerbated," Kobus should be reinstated to his prior or substantially equivalent job but, as punishment for his insubordination, without any backpay, seniority rights, vacation pay, or any other employee credits for the period between his discharge from employment on Sep- tember 14, 1978, and the date he is returned to work. In support of her Motion for Summary Judg- ment, counsel for the General Counsel contends that Kobus was exercising his statutory right as de- fined in N.L.R.B. v. J. Weingarten, Inc., supra, when he refused to meet with either McKee or Gorsen without a union steward being present and that his subsequent suspension and eventual dis- charge for asserting this right violated Section 8(a)(l) of the Act. Thus, she argues that the arbi- trator's award should not be deferred to because it penalizes Kobus for having asserted his statutory right and is therefore repugnant to the Act.6 She therefore requests the Board to issue an order re- 5 The parties have stipulated that the arbitration proceeding was fair and regular and that all parties o said proceeding had agreed to he bound thereto See Spielberg Manufacturing Company, 112 NLRB 1080 (1955) quiring Respondent to make Kobus whole for the loss of backpay for the period between his dis- charge on September 14, 1978, and the date he re- turned to work and to grant him seniority, vacation pay, and any other employee credits he would have been entitled to during that same period. Respondent, on the other hand, in support of its Motion for Summary Judgment, argues that the Board should defer to the arbitrator's award on the basis of its decision in Spielberg Manufacturing Company, supra. Alternatively, it argues that, if the Board should find the arbitrator's award to be re- pugnant to the Act, it should nevertheless dismiss the complaint for the following reasons: The Union had contractually waived the employees' rights to union representation in the type of situation in- volved here, as Kobus did not have a reasonable basis to fear discipline when asked to step aside for the private conversation; the presence of a union steward was not required since "the purpose of the supervisory requests . . . was not investigatory in nature"; and Kobus, in any event, had had access to a union steward. For the reasons stated below, we find that the complaint should be dismissed in its entirety. We find that deferral to the arbitrator's award here is appropriate under the Spielberg principles 7 . Inasmuch as the parties have stipulated that the first two Spielberg criteria have been met, the only remaining issue is whether the arbitrator's decision that Kobus was obligated to obey his supervisor's order to step aside for a private conversation with- out his union steward is repugnant to the Act. We find that it is not." Having found that the Speilberg criteria have been met, we find it unnecessary to reach the merits of the instant case. Accordingly, we shall defer to the arbitrator's award and dismiss the complaint. FINDINGS OF FACT 1. THE BUSINESS OF RESPONI)ENT Respondent is a Texas corporation with its prin- cipal office and place of business located in Texas City, Texas. During the past 12 months, a repre- sentative period, Respondent purchased and caused to be delivered directly to its Texas City plant, the only facility involved herein, goods valued in 7 Spielberg Manujb(turing Company, 112 NLRB I080 Those principles are that the Board will defer to an arbitrato r's award when it is demon- strated that (I) the proceedings appear to hase been fair and regular, .2) all parties have agreed to h bound and i the award 1is at "clearNl repugnant" to the plicies alid purpose, of the Act Cf Radlway aExpros. Inc. 24t NLR1 No 180 ( l47ql) 'hairlan Fail- ning notes thait he d i noit agree with the nlaitlr ori lll.. iii in Ro,1d l; and that he dissented in that cae lie doe, ri l hchcc. ht ,er . that the application of currlent ri.naorit precedent is ", t'arl% rpulgl; it t t lhe Act withill the inealliing of1 Spil/lrr 1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excess of $50,000 directly from firms located out- side the State of Texas. The complaint alleges, the answer admits, and we find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the pur- poses of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION Oil, Chemical, and Atomic Workers Union, Local 4-449, is, and at all material times herein has been, a labor organization within the meaning of Section 2(5) of the Act. CONCLUSIONS OF LAW The conduct of Respondent, as alleged in the amended complaint herein, does not violate Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the General Coun- sel's Motion for Summary Judgment be, and it hereby is, denied. IT IS FURTHER ORDERED that Respondent's Motion for Summary Judgment be, and it hereby is, granted, and that the complaint be, and it hereby is, dismissed in its entirety.