Electrical Workers Local 1105

National Labor Relations Board - Board DecisionsMar 9, 1981

254 N.L.R.B. 1186 (N.L.R.B. 1981)

LAB0 1 backpay 1105's backpay backpay w r o n g d ~ e r . ~ backpay g r i e ~ a n c e . ~ backpay pro/orma that 1105 Sec. R(b)(I)(A) International o/ 324. (Centex o/Cali/ornia. o/ Corp.). IR filed a n ~ e . ~ 12 1105's backpay backpay 1979.5 1105 Local .Vo. Inrerna~ional o/ Ekcrrical (Federal Elecfric Corporalion). and Local .Vo. 1593. In~ernational (Strachan abl. 514(1978). 5 hat 12 the promotton 1186 DECISIONS OF NATIONAL United Electrical, Radio and Machine Workers of America and Local 1105, United Electrical, Radio and Machine Workers of America (West- inghouse Electric Corporation) and Arlene Wells. Case 13-CB-8487 March 9, 1981 DECISION AND ORDER On September 30, 1980, Administrative Law Judge Stephen Gross issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent Local 105 filed a response. 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, find- ings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The General Counsel's exceptions relate solely to the Administrative Law Judge's refusal to provide for in order to remedy Respondent Local unlawful failure properly to consider and file a grievance on behalf of employee Wells. The sub- stance of the grievance involved the denial of a promotion from grade 9 wirer to grade 12 wirer. The General Counsel contends that is due Wells for the period commencing February 16, 1979, when the alleged violation occurred, until June 26, 1979, when Respondent Local 1105 actu- ally commenced grievance proceedings on Wells' behalf. The Administrative Law Judge, noting that the General Counsel does not allege misconduct in the June 26 processing of Wells' grievance, found that the subsequent dismissal of the grievance on its merits indicates that the grievance would have been denied even absent unlawful conduct by Re- spondent Local 1105. Accordingly, he concluded that Wells suffered no monetary loss and that no was due. We find merit in the General Counsel's exceptions. In determining the appropriate remedy for a union's unlawful refusal to process a grievance, the Board has emphasized that any uncertainty with re- spect to the merits of the grievance is to be re- solved in favor of the injured employee and not the Based on this presumption, the Board has awarded to the injured party for losses incurred prior to the proper processing of the Further, in devising these In the absence of exceptions we adopt the Administrative Law Judge's conclusion Respondent Local violated of the Act. Laborers Union North Americo. Local AFL-CIO Homes Incorporated), 234 NLRB 367 (1978). United Steelworkers America. AFL-CIO (Inter-Royal 223 NLRB 1184 (1976). 254 NLRB No. 161 RELATIONS BOARD on the outcome of the subsequently griev- The record indicates that the Employer's ulti- mate rejection of Wells' grievance was based on its decision that Wells was not eligible for the promo- tion to grade wirer because she was unable to show that she possessed the ability to do the job satisfactorily. The General Counsel contends that the additional passage of time caused by Respond- ent Local failure properly to handle the grievance arguably adversely influenced the Em- ployer's consideration of Wells' grievance, both due to her work performance during the period after the grievance should have been filed and due to the Employer's increased liability. In its response, Respondent Local 1105 claims that the dismissal of the grievance on the merits eliminated any uncertainty and that the imposition of would constitute a penalty against it. In the circumstances of this case, we find that the Administrative Law Judge erred in finding that the belated processing of Wells' grievance removed all uncertainty with respect to the merits of her grievance. Although the grievance resulted in the finding that Wells could not show ability to per- form the duties of a grade 12 position, this determi- nation was not made until February 1, 1980, after the grievance was filed on June 26, 1979. Howev- er, the initial basis given by the Employer in Feb- ruary 1979 for denying the promotion to Wells was not that she was unqualified, but that she had pre- viously turned down a proposed promotion to a grade 12 position which disqualified her for subse- quent grade 12 openings. The record indicates that , this offer of a promotion occurred no earlier than 7 months before she was denied the promotion in February Obviously, the earlier offer of the grade 12 position indicates that the Employer con- sidered her qualified to perform at the grade 12 level at some time prior to the resolution of the grievance. The record does not indicate when the Employer could have first justified its subsequent conclusion that Wells was no longer able to per- form at this level. Accordingly, Respondent Local 1105 has failed to prove that its delay in processing Wells' grievance did not cause her to be denied the promotion. We shall therefore order that Respond- ent Local be required to pay employee Wells the difference between the pay rates for grades 9 See Union 2088. Brotherhood Workers, AFL-CIO 218 NLRB 396, 397 (1975): Clerks Checkers Longshoremen's Arsociation. AFL-CIO Shipping Company. el 234 NLRB 511, The record indicates there is only a single job description for grade wirers. Wells testified that she rejected earlier offer of a because it was for night-shift work. 1105 (1977).6 lO(c) 2(a) " Isis & backpay backpay b a d backpay Plarform Local Teomsrers, Inc.), (1 ORDER WILL or WILL backpay 1105 4 1105 1105's 41st of test~mony 651 ELECTRICAL WORKERS AND LOCAL 1187 and 12 for the period between February 16 and June 26, 1979, as requested by the General Coun- sel, with interest to be computed in the manner prescribed in Florida Steel Corporation, 23 1 NLRB ORDER Pursuant to Section 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 modi- fied below, and hereby orders that the Respondent, Local 1105, United Electrical, Radio and Machine Workers of America, Chicago, Illinois, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Insert the following as paragraph and re- letter the subsequent paragraphs accordingly: "(a) Make Arlene Wells whole for all loss of earnings resulting from the discrimination practiced against her by payment of the sum of money to which she is entitled in the manner set forth in the Board's Decision and Order." 2. Substitute the attached notice for that of the Administrative Law Judge. See. generally, Plumbing Heating Co., 138 NLRB 716 (1962). Member Jenkins would award interest on the due based on the formula set forth in his partial dissent in Olympic Medical Corpomtion, 250 NLRB 146 (1980). Chairman Fanning does not agree with the remedy, and would adopt the order recommended by the Administrative Law Judge. The violation round in this case is solely on Respondent's failure to process a grievance in Wells' behalf. Respondent has now processed that grievance, and it has been found to be without merit. No allegation has been made that the grievance was processed in an unfair o r negligent manner, and there is no showing that the delay in filing it or the way it was presented affected the decision on the merits. Any assumption that the loss of the grievance was attributable to delay o r dereliction on the part of Respondent is purely speculative. At this stage of the proceed- ings, Chairman Fanning sees no basis for presuming the grievance was originally meritorious; any uncertainty as to its merit has now been re- solved. Consequently, he concludes no remedy is warranted. See Truck Drivers Oil Drivers and Filling Station and Workers No. 705, International Brotherhood of Chauffeurs Warehouse- men and Helpers of America (Associated Transport, 209 NLRB 292 974). APPENDIX POSTED BY OF THE An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. We intend to carry out the Order of the Board and abide by the following: WE NOT fail refuse to afford Arlene Wells or any other employee full and fair rep- resentation in the processing of a grievance be- cause of his or her criticism of union manage- ment or because of his or her lack of member- ship in the Union. WE NOT in any like or related manner restrain or coerce members in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL make whole Arlene Wells for all loss of retroactive with interest which she may have suffered as a result of the dis- crimination against her. LOCAL 1105, UNITED ELECTRICAL, RADIO A N D MACHINE WORKERS O F AMERICA DECISION STEPHEN GROSS, Administrative Law Judge: On May 7, 1979, Arlene Wells filed a charge against the United Electrical, Radio and Machine Workers of America (hereinafter called the Electrical Workers) claiming that the Union improperly refused to represent her. Wells filed an amended charge on July 13, 1979. The amended charge referred both to the Electrical Workers and to Local 1105 of the Electrical Workers. According to the amended charge, the Electrical Workers and Local refused to represent Wells because she was not a member and "for other unfair, arbitrary and invidious reasons." On June 28, 1979, the National Labor Relations Board's Regional Director for Region 13 filed a com- plaint based on Wells' charge. The complaint was amended on November 28, 1979. Both the Electrical Workers and Local denied any wrongdoing, and the case went to hearing on Febru- ary 21, 1980. At the conclusion of the General Counsel's case, both Respondents moved to dismiss the complaint. I adjourned the hearing in order to consider the motions. On April 28, 1980, I issued an order dismissing the com- plaint insofar as it charged the Electrical Workers with a violation of the National Labor Relations Act, as amend- ed. But I denied Local motion to dismiss.' The hearing resumed on June 16, 1980. Both Local 1105 and the General Counsel have filed briefs. The case stands ready for decision. Wells works at Westinghouse Electric Corporation's West Street factory in Chicago. She is a grade 9 That order is included in the record as G.C. Exh. 8. The facts set forth below are, except where otherwise indicated, a synthesis of the credited aspects of the testimony all witnesses and ex- hibits. Although I did not, in the course of this Decision, discuss every bit of record and documentary evidence, it has all been Continued RELATlONS urovides "upgrading based& seniority, job."3 Cathey midJanuary Cathey IS, 1105 Cathey Cathey, sec. I1,B.) Cathey Cathey, Cathey Cathey Cathey Cathey Cathey Cathey. Cathey, Cathey, Cathey Cathey Cathey Cathey's Cathey Cathey Cathey Cathey Cathey rep1 In July Local 1105's recorn- [his -to the L ~ ~ ~ ~ v ~ membership thai they go out on a G.C. EX^. 2. p. 29. 1188 DECISIONS OF NATIONAL LABOR BOARD wirer. A grade 12 wirer position came open in mid-Janu- ary 1979. The grade 12 position was the next step up from the kind of grade 9 job that Wells held. The collec- tive-bargaining agreement between Westinghouse and the Electrical Workers that of em- ployees to fill available jobs will be if the employee can do the Wells was not offered the grade 12 position. Rather, the position was offered to, and accepted by, a grade 9 wirer who was junior to Wells, Countess Williams. Wells found out about Westinghouse's selection of Williams sometime in January. Wells felt that she could do the grade 12 job and that; since she was senior to Williams, the position should have been given to her. She said so to her foreman, Frank Slifka, but got no re- sponse. Robert is the shop steward in Wells' depart- ment. He was out sick from to mid-Febru- ary. A day or two after returned to work in Feb- ruary, about February Wells complained to him about not being selected for the grade 12 position. She asked that Local prosecute a grievance on her behalf. took the matter up with Slifka (Wells' fore- man). According to the foreman's position was that Wells was passed over because she had previously turned down a grade 12 slot and had not subsequently advised the Company that she wanted to be considered for other grade 12 jobs. (Slifka was referring to local supplement 5 to the Electrical Workers-Westinghouse agreement, which provides that: "If an employee refuses a job (upgrade) . . . he will not be asked again to accept the specific job . . . unless he gives written notice that he wants to be asked in the future." G.C. Exh. 4, Wells had in fact turned down the opportunity to be considered for a grade 12 wirer position. But that job was on the night shift, as knew. According to Wells was not content with that explanation and wanted him to file a grievance. He said he would check into it. (Wells remembers saying, in response to her request "for a grievance," that "he didn't feel that he could get one but he would try.") Local 1105's standard procedure in circumstances such as those facing was for the shop steward to dis- cuss the matter with the chief steward. But the chief ste- ward was out sick so turned, instead, to Local I 105's president, James Usher. According to Usher, he told that the local sup- plement to the Electrical Workers-Westinghouse agree- ment precluded the filing of a grievance in a case such as the one at hand if more than 3 days had passed since the job in question was filled. (What Usher was referring to was a limitation in the collective-bargaining agreement providing that "no grievance relative to the filling of jobs may be initiated later than three working days fol- lowing notice to the designated Union officers as to who the successful applicant was." G.C. Exh. 7, p. 3). Usher weighed and considered. T o the extent that evidence not mentioned in Decision might appear to contradict my fact findings, that evidence has not been disregarded but has been rejected as nor credible or other- wise lacking probative worth. testified that he told that, since the 3-day period had expired, "We couldn't put in a grievance." Usher testified twice, once in February, when he was called by the General Counsel, and once in June, on behalf of Local 1105. Usher was asked at the February hearing how he knew that the grade 12 position in ques- tion had been filled for more than 3 days. Usher seemed unsure of where he got the information but responded af- firmatively when asked if his information came from however, denied even knowing when Williams got the job (it occurred when he was out sick) much less giving the information to Usher. When Usher was asked the same question at the June hearing, he said that his information about the grade 12 job being filled more than 3 days prior to Wells' request for union action came from "rumorsw-"I heard rumors, and that plant is full of rumors, saying that." According to his conversation with Usher was somewhat more abbreviated than Usher's testimony would indicate. testified that Usher "just told me it would be no good to put . . . in a grievance and that was enough answer for me. He said it was no good to put . . . in a grievance and that was it." then returned to Wells. When Wells asked him about the grievance, told her that Usher had said that "it would be no good to put in a grievance." Wells, on the other hand, testified that, on return from Usher, said, "I tried to get the grievance and they wouldn't give it to me and I don't want any prob- lems with the Labor Board." specifically denied ever saying anything to Wells about "the Labor Board" and I credit that denial. Several months later, in May 1979, Wells spoke to an- other officer of Local 1105, Dorothy Cass, about the matter. According to Wells, was standing beside Cass at the time. Wells testified that Cass "turned around and asked why he hadn't filed a grievance be- cause he had access to the grievance papers. He , shouldn't have had to ask anybody else." did not y. Local 1105 ultimately did prosecute a grievance on Wells' behalf. But it did not begin to do so until June 26, 1979, which was after Wells had filed a charge with the Board. Wells' grievance was denied on the ground that Wells had not shown that she could do the grade 12 job. (G.C. Exhs. 5 and 6.) The General Counsel's Contention According to the General Counsel, Local 1105's refus- al to prosecute a grievance on Wells' behalf did not hinge on the 3-day limitation period that Usher referred to in his testimony. Rather, argues the General Counsel, Local 1105's reticence stemmed from a verbal attack on Usher that Wells had made some months earlier and from the fact that Wells was not a member of the Union. Wells' Criticism of Usher 1978 Usher, as president, d d men e strike. The membership voted in favor of the strike and a 3- or 4-day strike followed. 1105 1105 Cathey 1105 (Cathey) 1105's grievance. - Cathey Cathey Cathey's Cathey 1105 1105 8(b)(l)(A) e.g., 1105 Inc., (1980).4 2(2) 2(5) 1105 8(b)(l)(A) 2(6) 1105 b 8(b)(l)(A), 1105 Cathey improper 1105 ' 1105's 1105's discrimma- Sipes PPG Inc., 1105's ELECTRICAL WORKERS AND LOCAL 1189 At the time of the strike Usher had been suspended by Westinghouse for insubordination. Local held a meeting after the strike ended. At the meeting Wells stood up to claim that Usher's real reason for having rec- ommended the strike was the Company's disciplinary action against him and that the strike had been a costly one for the employees with no discernible benefits result- ing from it. Wells was the only person at the meeting to raise the issue of Usher's personal problems with the Company. Shortly after the strike, Wells resigned her member- ship in the Local. (The collective-bargaining agreement did not then contain a union-security provision.) There is no dispute that at the time Wells asked the Union to handle her grievance both and Usher knew that Wells was not a member of the Union. Local 1105 denies that Wells' criticism of Usher o r her act of ending her membership in Local had any- thing whatsoever to d o with the Local's not prosecuting a grievance on her behalf. Moreover, Usher testified that Local 1105 frequently files grievances on behalf of bar- gaining unit employees who are not union members. T h e General Counsel does not dispute that contention. T h e Company's Failure T o Give Proper Notice The General Counsel points out that Usher's statement that Wells' grievance was time barred rested on dubious grounds. As noted above, the 3-day limitation period starts to run only "following notice to the designated Union officers." The Company did not notify Usher of its selection of Williams. Nor did it notify either the shop steward or the chief steward. Since those offi- cers are apparently the only officers Westinghouse had any reason to notify, it appears that the Company never did give the requisite notice. Conclusion My conclusion is that Wells' criticism of Usher, o r the combination of that criticism plus her termination of her union membership, affected Local handling of her First, based on demeanor alone, I d o not credit the tes- timony of Usher and to the effect that they did not discuss Wells' criticism of Usher o r her lack of union membership when sought Usher's advice on how to handle Wells' grievance. Second, failure to tell Wells why Local 1105 would not handle her grievance and his failure to re- spond to Cass' criticism suggest that felt that something was awry. Third, Usher's information about Wells' rights came from a combination of his recollection of the terms of a part of the collective-bargaining agreement with which he admittedly and obviously was not intimately familiar and from employee chitchat about when Williams was promoted. While it is possible that Usher could not have bothered t o read the applicable contract provisions nor to check on the accuracy of that chitchat even if he were not hostile t o Wells, it seems unlikely that he would have acted in such an off-the-cuff manner. These circumstances persuade me that Local gave less careful consideration to Wells' grievance re- quest because of her criticism of the Union's president, or because of a combination of that criticism and her lack of union membership, than it otherwise would have. That alone amounts to a violation by Local of Sec- tion of the Act. See, Vaca v. Sipes, 386 U.S. 171 (1967). In any case, since the Union failed to show that it would have gone no further with Wells' grievance even had the Union given more careful, less biased, consideration to it, it can be presumed that Local would have pursued Wells' grievance had the Union's consideration of it not been affected by Wells' criticism of Usher. See Wright Line, a Division of Wright Line, 251 NLRB 1083 I. Westinghouse Electric Corporation is an employer engaged in commerce within the meaning of Section and (6) of the Act. 2. Local 1105, United Electrical, Radio and Machine Workers of America, is a labor organization within the meaning of Section of the Act. 3. Local violated Section of the Act by: (a) giving less careful consideration than it otherwise would have to a request by Arlene Wells, a member of the bargaining unit, that the Union prosecute a grievance on her behalf because of Wells' criticism of Local 1105's president, or because of a combination of that criticism and her lack of union membership, and (b) failing to file a grievance on behalf of Wells when the Union would have filed one but for that less careful consideration. 4. These unfair labor practices affect commerce within the meaning of Section and (7) of the Act. Since Local engaged in unfair labor practices within the meaning of Section I shall recom- mend that it be ordered to cease and desist from doing so and to post a notice to that effect. T h e General Counsel asks that the remedy in this pro- ceeding include a requirement that Local "make whole Wells for the difference between pay grades 9 and 12 from February 16, 1979 until June 26, 1979." (G.C. br. at 4.) (February 16 was the approximate date on which told Wells that the Union would not handle her grievance. June 26, 1979, was the date the Union did begin to prosecute Wells' grievance.) Under the facts of this case, however, it would be to order Local to pay anything to Wells. The General Counsel argues that, even if Local handling of Wells' grievance had not been affected by its hostility towards Wells, the Union's actions would still constitute a violation of the Act since those actions were "at best perfunctory and wholly inadequate to satisfy the local's fiduciary duty to a bargaining unit employee." But it is not alto- gether clear that Local handling of Wells' grievance was so per- functory or inept as to constitute a violation of the Act absent tory behavior by the Union. See Vaca v. supra; Industries, 245 NLRB 1290 (1979). And. in view of my finding that Local handling of Wells' grievance was affected by Wells' criticism of Usher, the issue raised by this second theory need not be decided. 5(a), 2.) Cathey. 1105's l q c ) Sec. find- 1. corerc- 8(a)(3) " A p p e n d i ~ . " ~ ings, ' Sec. purposes. States 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The collective-bargaining agreement between Westing- house, on one hand, and the Electrical Workers and Local 1105, on the other, provides that a grievance may be prosecuted through a series of three steps at the local level. If the grievance is not resolved at the local level to the Union's satisfaction, it may then appeal to Westing- house at the "national appeal level." (G.C. Exh. 2, p. 36. If the Company's response at that level continues to be unsatisfactory, and if the Union advises the Company within 30 days that it wishes to pursue matters further, the collective-bargaining agreement provides for refer- ence to either an impartial umpire o r an "appropriate government agency." Id. at 37. Local 1105 did prosecute Wells' grievance up through step 4-the national appeal level. On February 1, 1980, Westinghouse's "Management Appeal Grievance Com- mittee" denied the grievance. According to the commit- tee, Wells was properly passed over because she "was unable to demonstrate that she could satisfactorily per- form the labor Grade 12 wiring job." (G.C. Exh. p. T h e Union did not seek to g o further with Wells' grievance than that step 4 decision, and the General Counsel does not contend that the Union's handling of the grievance that led to that decision, nor the Union's failure to appeal that step 4 decision, was in any way im- proper. Under all these circumstances, and in particular in view of the bases of the step 4 denial of Wells' griev- ance, the record shows that Wells' grievance would have been denied even had Local 1105 vigorously prosecuted it as soon as Wells raised the matter with Since Local violation of its obligation to Wells caused her no loss, there is nothing to make her whole about. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record, and pursuant to Section of the Act, I herby issue the folloiwng rec- ommended. T h e Respondent, Local 1105, United Electrical, Radio and Machine Workers of America, Chicago, Illinois, its officers, agents, and representatives, shall: In the event no exceptions are filed as provided by 102.46 of the Rules and Regulations of the National Labor Relations Borrd, the Cease and desist from: (a) Failing or refusing to afford any employee full and fair representation in the processing of a grievance be- cause of his or her criticism of union management o r be- cause of his or her lack of membership in the Union. (b) In any like or related manner restraining or ing employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Post at its business office, and all other places where notices to its members are customarily posted, copies of the attached notice marked Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by an au- thorized representative of Local 1105, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Local 1105 to insure that said notices are not altered, de- faced, or covered by any other materials. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Local 1105 has taken to comply herewith. conclusions. and recommended Order herein shall. as provided in 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 In the event that this Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United Court of Appeals Enforcing an Order of the National Labor Relations Borrd."