International Chemical Workers Local 190

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1535 (N.L.R.B. 1980)

INTERNATIONAL CHEMICAL WORKERS. I.OCAL. 15 35
International Chemical Workers Union, Local No.
190 (FMC Corporation) and Ronald Lee Ste-
vens. Case 32-CB-527
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On May 20, 1980, Administrative Law Judge
Earldean V. S. Robbins issued the attached Deci-
sion in this proceeding. Thereafter, the Respondent
filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
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, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt her recommended Order. 3
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 and
hereby orders that the Respondent, International
Chemical Workers Union, Local No. 190, Modesto,
California, its officers, agents, and representatives,
shall take the action set forth in the said recom-
mended Order, except that the attached notice is
substituted for that of the Administrative Law
Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
I The Administrative Law Judge cited General Truck Drivers. Ware-
housemen. Helpers and 4utomotive Employees. Local 313. International
Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers ofAmer-
ica (Rhodes & Jamieson, Ltd.), 217 NLRB 616 (1975), in support of her
finding that the Respondent violated its duty of fair representation by its
handling of the Charging Party's discharge grievance. Although Member
Penello dissented in Rhodes & Jamieson, he agrees with the legal princi-
ple for which it has been cited in this factually distinguishable case.
3 In lieu of the "Notice To Employees" recommended by the Adminis-
trative Law Judge, we shall substitute the "Notice To Employees and
Members" customarily used by the Board to remedy the kind of unfair
labor practices herein involved.
251 NLRB No. 204
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 opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILl. NOT do anything that restrains or
coerces employees with respect to these rights.
More specifically:
WE Wl.L NOT unfairly and arbitrarily refuse
to process the grievances of employees in a
bargaining unit represented by us.
WE WILL NOT threaten employees that we
will not represent them fairly if they seek as-
sistance from any agency other than us.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights to engage in self-organization, to
form, join, or help unions, to bargain collec-
tively through representatives of their own
choosing, to act together for collective bar-
gaining or other mutual aid or protection, or
to refrain from the exercise of any or all such
activities, except to the extent that such rights
may be affected by an agreement authorized
by Section 8(a)(3) of the Act.
WE WILL request FMC Corporation to rein-
state Ronald Lee Stevens to his former posi-
tion or, if that position no longer exists, to a
substantially equivalent position. If it refuses to
reinstate him, WE WILL ask FMC Corporation
to arbitrate the grievance over his termination,
and WE WILL pursue that grievance in good
faith with all due diligence.
Since it was decided that we violated the
Act by failing and refusing to arbitrate Ronald
Lee Stevens' grievance, WE WILL make him
whole for any losses he may have suffered by
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason of our failure to arbitrate that griev-
ance, plus interest.
All employees in any bargaining unit represented
by this Union are by law entitled to and will re-
ceive from this Union fair and nondiscriminatory
representation in the processing of their grievances
and otherwise.
INTERNATIONAL CHEMICAL WORK-
ERS UNION, LOCAL No. 190
DECISION
STATEMENT OF THE CASEI
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This case was heard before me in Modesto, California,
on December 4, 5, and 6, 1979. The charge was filed by
Ronald Lee Stevens, an individual, and served on Inter-
national Chemical Workers Union, Local No. 190, herein
called Respondent, on May 21, 1979. The complaint,
which issued on July 31, 1979, alleges that Respondent
violated Section 8(b)(1)(A) of the National Labor Rela-
tions Act, as amended, herein called the Act. The princi-
pal issue herein is whether Respondent unlawfully re-
fused to process to arbitration a grievance concerning
Stevens' discharge.
Upon the entire record, including my observation of
the witnesses, and after due consideration of the briefs
filed by the parties, I make the following:
FINDINGS OF FACT
1. COMMERCE
FMC Corporation, herein called FMC, is a Delaware
corporation with an office and place of business located
in Modesto, California, where it i engaged in the manu-
facture of chemicals. During the past calendar year,
FMC, in the course and conduct of its business oper-
ations, sold and shipped goods valued in excess of
$50,000 to customers located directly outside the State of
California.
The complaint alleges, and I find, that FMC is an em-
ployer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE A.LEGED UNFAIR LABOR PRACTICES
Respondent is the collective-bargaining representative
of certain of FMC's employees. In the latter part of 1978
or around the first of January 1979,' FMC discussed
with Respondent its desire to shorten the 8-week sched-
ule to which employees were then assigned. As a conse-
quence of this discussion, around the first week in Janu-
ary, Chief Union Steward Billy Ray polled unit employ-
i All dates hereinafter will he in 197q unless otherwise indicated
ees as to whether they favored such a change. In compil-
ing the results of the poll, Ray counted as favorable to
the change all employees who indicated that they had no
particular preference.
Around the first week in January, Stevens told Ray
that a lot of union members were not polled and asked
why Ray had counted an "I don't care" vote as a "yes"
vote. Ray said he had done this because the Company
wanted an 8-week schedule. According to Stevens, Ray
appeared unhappy at Stevens questioning him as to the
conduct of the poll and said that if Stevens wanted to
discuss it any further, he would have to bring it up at a
union meeting.
On that same day, Stevens began his own poll of em-
ployees as to the proposed schedule change. By circulat-
ing a petition which states, "union members wishing to
revote on the 8-week schedule or would like to vote for
the first time write your name below." Within 2 days 34
employees had signed the petition along with a notation
as to how they would vote. 2 On the second day, Stevens
asked employee C. A. Gilley to sign the petition. Gilley
said that at the last union meeting some union official
suggested that there should not be any polling at work
but that no decision was made during the meeting. Gilley
and Stevens then approached Ray. According to Ste-
vens, Gilley asked Ray if it was all right to poll. Ray
started jumping up and down, shaking his finger, and
told Stevens to return to his department immediately or
he would be fired. Gilley said, "we're just asking you a
question. We just want an answer." Ray said Stevens
was out of his department, for which he could be dis-
charged and that he had better return to his department
immediately. Gilley said he would sign the petition and
Ray walked away.3
Ray testified that he noticed Stevens coming from an-
other department with a clipboard in his hand. He asked
Stevens what he was doing. Stevens said he was taking a
poll as to the proposed 8-week rotation schedule. Ray
asked if he had permission from the Company. Stevens
said no. Ray said when he took his poll he had the Com-
pany's and the Union's permission. He then asked Ste-
vens what he was supposed to be doing. Stevens said he
was running the leacher operation. Ray said you had
better get back to your department or they are going to
fire you for this.
The following day, Stevens told Respondent's presi-
dent, Hershell Young, that Ray's poll was unfair that
there should be another poll and informed him that he
had started a petition. Young agreed that Ray's poll was
not handled properly and stated that it would have been
handled better at a union meeting, but gave no definite
answer as to whether employees would be repolled. Ste-
vens also mentioned that Ray had caused him to lose
some overtime by reporting to the Company an error on
the work schedule where Stevens was mistakingly sched-
uled for 16 consecutive hours. Ray and Stevens were at
the bulletin board together when they noticed this error.
Stevens asked Ray if he were going to report it. Ray said
2 This petition was never transmitted to the Union
:' Gilley did not testify Stevens testified that his information is that
Gilles has mored to Oklahoma
INTERNATIONAL CHEMICAL WORKERS, LOCAL 190 1537
yes. Stevens asked him not to, stating that he needed the
overtime. Nevertheless, Ray did report the error. Ac-
cording to Stevens when he asked Ray why he did so,
Ray said the Company could not afford to pay Stevens
the overtime.
Young testified that Stevens said that Ray asked him if
he had permission to circulate the petition, Stevens said
no, and Ray then said, "I would suggest you get back to
the department or you may get fired." He denies that
Stevens said Ray yelled at him, jumped up and down,
shook his finger at hifn, and told him to get back to his
department. However, he admits that Stevens com-
plained about the overtime incident and said he wanted
Young to tell Ray to stop interfering with his overtime.
Young said he would. Stevens further indicated that he
wanted Ray removed as shop steward. Young testified
that he did talk to Ray regarding the overtime but denies
that he told Ray that Stevens wanted him removed as
shop steward, prior to the pre-hearing investigation of
this matter.
Employee Lloyd Edge testified that in January or
February, following a union meeting, he was talking to
Ray and several other employees, including Lonnie An-
derson, about what had occurred at the union meeting.
Somehow the conversation turned to Stevens and Ray
said he would not represent Stevens if he ever got into
trouble because he felt he would be guilty of any charges
brought against him. On cross-examination, when Edge
was asked if, in the same conversation, Ray also said it
would be hard to defend Stevens if he ever got into trou-
ble, Edge said that because of the noise level he was not
sure.
Lonnie Anderson, a shop steward, testified that in Jan-
uary during a conversation between him, Ray and sever-
al other employees in the break room, there was some
discussion of Tawana Hensley, an employee in the leach-
ing department being accused of using drugs. Ray said
people in the leaching department were going to get
busted, someday. He also said that one of these days the
leaching department was going to need help. At some
point, they began discussing Ray's poll and Stevens' peti-
tion. Ray said that Stevens was trying to start trouble be-
cause the employees had already voted on the schedule
change. He then said Stevens was going to need his help
someday. Ray did not deny either of these conversations.
On February 26, Stevens, an operator in the leaching
department on the swing shift, encountered a problem
with some machinery which required him, for most of
the shift, to be away from the operators duty station,
commonly referred to as the doghouse. Around 11 p.m.,
he returned to the doghouse and commenced making no-
tation in a log which he maintains.
At or about 11:10 p.m., Operating Superintendent
Bruce Wall came into the doghouse. Shortly thereafter,
Wall went to the window, reached out, and took from
the ledge outside the window a paper bag containing
two empty beer bottles. According to Stevens, Wall
asked, "What's this?" Stevens said it was two empty beer
bottles which he knew nothing about. Wall said, "I've
got your ass now." Wall then summoned Foreman
Jimmy Anderson and shop steward Lonnie Anderson.
When they arrived Wall accused Stevens of drinking on
the job. Wall further said he had seen employee Rudy
Briones drive into the parking lot and hand Stevens the
beer through the window of Briones' car.
Following some questioning by Stevens and Lonnie
Anderson, Wall changed his story and said Briones gave
Stevens the beer in the lunchroom. 4 Then Wall said he
smelled marijuana smoke and asked the foreman if he
smelled it. The foreman did not reply. Wall and the fore-
man went outside for a few minutes. Wall returned and
asked Stevens to take a blood test. Stevens agreed. How-
ever, Lonnie Anderson said he wanted to check with
Ray first and left to telephone Ray. Wall decided to
search all of the employees' lockers in the operator's sta-
tion, which he did, but found nothing. He continued
searching the area and found an unopened bottle of beer
on a shelf. Wall remarked that the beer bottle was cold.
By this time Lonnie Anderson had returned. Lonnie An-
derson said it did not look cold to him, and mentioned
the absence of moisture on the outside of the bottle. Wall
said there was foam in the empty bottles. According to
Stevens, he and Anderson looked at the empty bottles
but there was no foam in the bottles. Lonnie Anderson
said Ray had told him that Stevens should not take a
blood test.
Near the end of the shift, Lonnie Anderson and Ste-
vens met with Wall and Wilbur White, the assistant plant
manager. At this time, Stevens was told that drinking on
the job was a serious offense and asked for a statement.
Stevens said he realized the seriousness of the charge and
stated that he had nothing to say. A factfinding meeting
was scheduled for the next morning.
The factfinding meeting was held as scheduled on
February 27. Present were Young, Ray, Lonnie Ander-
son, Stevens, Wall, White, and Personnel Manager James
Morgenson. Wall gave his version of the events that led
him to believe that Stevens had engaged in misconduct.
The company representatives indicated that Stevens had
been suspended for possession of beer, having smoked
marijuana, and being out of his department. The union
representatives questioned the charge of possession of
beer, taking the position that there was no possession in-
asmuch as Stevens was not actually caught with the
beer. Union representatives also questioned him as to his
alleged recognition of the smell of marijuana in a depart-
ment that always contained strong chemical smells, his
inability to describe the car which Stevens allegedly ap-
proached, and his shifting account of the alleged transfer
of the paper bag to Stevens.5 According to Stevens, he
said he had taken a blood test, and asked the company
representatives if they wanted to see proof of this. White
said no, and Young told Stevens to keep it in his pocket.
Ray said they had previous problems in situations where
it was one person's word against another's and he
thought they had an agreement that if the Company
needed a witness they would call a union representative.
4 Briones later told union representatives that he had not been at Ihe
plant that night Both Briones% and his ife testified that he did not leave
his house that eening.
s Wall refused toI divulge the location of the antage point from hich
he made his obhseratlion Also, according to Stevrens during the meeting
Wall said he did not see Stevens go to the car he only say him enter he
parking lot and then return .ith a paper hag
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the union group left the meeting, according to
Stevens, he asked Ray if he should obtain a lawyer. Ray
did not answer. Stevens asked if they wanted to see
proof that he had taken a blood alcohol test. Young said
they would use it at a later date. Lonnie Anderson testi-
fied that Ray remarked that he did not think the Compa-
ny could prove anything so they would bypass the
second step and go directly to the third step. Anderson
also corroborates Stevens' testimony as to the conversa-
tion regarding the blood alcohol test.
Young testified that during this conversation Stevens
asked him what he thought the Company was going to
do to him. Young said he did not know, it could be
nothing or it could be termination. Young further said,
"You get us the sobriety slip because I have a hunch that
they are going to suspend you and we are going to need
it." Stevens said he was going to sue the Company.
Young said, "Ron, the Union can't sue them for you,
that is a civil matter and we don't delve into that." Ste-
vens asked about a lawyer. Young said the "only one I
know of, unless you have a lot of money is to go to the
California Rural Legal Assistance."
Before the end of the day, Morgenson telephoned Ste-
vens and told him he had been terminated. Stevens asked
for what reason and, according to Stevens, Morgenson
said, for drinking on the job.
On February 27, Ray filed a written grievance on Ste-
vens' discharge. On March 2, a third step grievance
meeting was held. Stevens was not notified of the meet-
ing so he did not attend. Wall was also not in attendance.
Several company representatives were present including
Resident Manager Brian Kennedy. Several union repre-
sentatives were present including Young, Ray, Anderson,
and Leonard Perryman, IEWU International representa-
tive, who handles arbitrations for the Union.
On March 10, Stevens' grievance was denied. The
body of the company's third-step answer reads:
The situation leading to suspension and then dis-
charge is: (1) observed away from his work station
at approximately 10:00 p.m. and seen bringing a
paper bag from the parking lot, and (2) found to
have two empty beer bottles in his work station and
one full beer bottle concealed at his work station at
approximately 11:00 p.m. A further issue of smoke
in his work station similar to marijuana is stated but
due to the lack of any hard evidence is not being
charged.
The seriousness of any intoxicant being consumed
by an operator during his shift is recognized by all
members of the plant. The safety of the individual
and his co-workers is of paramount concern to me.
In 1977 and again in December of 1978, operating
management issued written work rules concerning
using and possessing intoxicants or drugs on the job.
The most recent rules were issued and then dis-
cussed at employee meetings with the work force.
According to our "Rules We Work By" of Decem-
ber, 1978, I quote: The offense of "using or drink-
ing, or being in possession of an intoxicant or illegal
drug while on the job is considered so serious that
commission of it will he considered sufficient
grounds for discharge on the first occasion."
All evidence was found within the work station
comfort general area. The empty beer bottles still
had foam in the bottom, which indicated they had
been recently consumed. These same bottles were in
a paper bag similar to the package the grievant was
seen carrying into the plant approximately an hour
earlier. These were visible and directly outside the
operator's window. The full bottle was still cold
while inside a comfort station and, consequently,
had to have been placed there recently.
The evidence was discovered at end of a 4-12 shift,
when little or no outside activity occurred in the
leacher area by outsiders; the operator was the only
person using this station.
Based on this evidence and the severity of the of-
fense, I am upholding the discharge of Ron Stevens
for the offense of possession of an intoxicant on the
job.
Following the factfinding meeting, Stevens had several
telephone conversations with Ray. According to Ste-
vens, the first such conversation was on March 1. Ste-
vens said he was new to the Union and he wanted to get
some information on what he should be doing. He said
he had received the results of the blood alcohol test
which was negative, and asked that Ray inform Kennedy
of this. He asked if he should go to the union meeting.
Ray said that was not necessary, that the Company had a
weak case, and he would take it to the union meeting
and get it approved for submission to arbitration.
Stevens further testified that after the March union
meetings he telephoned Ray and inquired if the mem-
bership had voted to take his grievance to arbitration.
Ray said it had not been brought up at the meeting. Ste-
vens asked why and said he thought Ray was going to
bring it up. Ray said, "You shouldn't go around making
people mad who have a right to vote on this, you
haven't even been sworn into the union yet, you
shouldn't make the people mad who can vote you out of
the union or into the union." Stevens asked if he should
come to the next meeting and personally bring up the
matter of taking his grievance to arbitration. Ray said
that would not be necessary, that he would bring up the
subject.
According to Stevens, Ray further said that Stevens
had degraded Ray and the Union by circulating the
schedule change petition. Stevens explained why he
thought Ray's poll was unfair. Ray said the poll was
over, that there was no way to change the results even if
it were raised at a union meeting. Ray also mentioned
that he had heard that Stevens called him a baboon, re-
ferring to the Ray-Gilley-Stevens conversation. They
discussed their problems amicably and seemed to agree
that perhaps the crux of the problem was rumors. Ray
said he would handle the arbitration issue at the next
union meeting, that he had already told Kennedy it was
6 Union membership meetings are held on the second Thursday of
each month.
INTERNATIONAL CHEMICAL WORKERS, LOCAL 190 1539
going to arbitration. He said he had told Kennedy this in
an effort to secure Stevens' reinstatement. Stevens asked
if Ray was going to tell Kennedy about the negative re-
sults from the blood alcohol test. Ray did not give a
direct answer. He asked if Stevens had a lawyer. Stevens
said he did not, but he could get one. Ray told Stevens
to take the results of the blood test to his lawyer.
Thereafter, Stevens ccntacted the NAACP for assist-
ance. They arranged an appointment for Stevens with
Kennedy. Stevens did not notify the Union of this ap-
pointment. As scheduled, Stevens met with Kennedy on
March 14. Kennedy immediately asked if Stevens wanted
union representation. According to Stevens, he never di-
rectly answered this question. Rather, he said he had
been sent down by a NAACP representative to show
Kennedy the results of the blood alcohol test and to in-
quire if Kennedy's decision was final. According to Ken-
nedy, Stevens' reply was "this is between me and the
Company and as far as I'm concerned, the people you
have in this room are fine." ' Stevens showed Kennedy
the results of the blood alcohol test. Kennedy said the
reason for Stevens' discharge was possession of alcoholic
beverages on the plant premises, not consumption of al-
cohol. Stevens said Wall was out to get him, that his
wife could verify this and also an industrial insurance
representative. Kennedy said he would verify this with
the insurance representative.
Kennedy testified that he did speak to the insurance
representative who did not verify Stevens' accusation,
but conceded that her attempts at neutrality during an in-
terview could possibly be misinterpreted as agreement
with the interviewee's point of view. Following this con-
versation, Kennedy instructed Morgenson to telephone
Stevens and inform him that he had talked to the insur-
ance representative but that his decision remained un-
changed. He also instructed either Morgenson or White
to inform Ray of Kennedy's meeting with Stevens on
May 25, at the Union's request following the filing of the
charge herein. Kennedy sent Young a memo confirming
the fact of his meeting with Stevens. The memo states,
inter alia, "I asked Ron if he desired to have . .. [Ray],
or another steward, present at that meeting. He stated he
did not and that the topic concerned himself and the
Company and not the Union." Stevens specifically denies
making that statement.
According to Stevens, in April, prior to the April
union meeting, he again asked Ray if he should come to
the April meeting and bring up the matter of taking his
grievance to arbitration. Ray said no, he would take care
of it and get approval. Again Ray said Stevens should
not incur people's anger before he was in the Union.
After the union meeting, Stevens further testified that
when he telephoned Ray, subsequent to the April union
meeting, Ray told him the matter had been voted on and
Stevens' grievance was going to arbitration. Ray remind-
ed Stevens that he had not been sworn into union mem-
bership and again advised him not to incur the anger of
people who had the right to vote as to Stevens' union
membership.
I White was also present
Stevens further testified that he spoke to Ray on the
telephone in May. Ray said it did not look good, it did
not look as if Stevens' grievance was going to arbitra-
tion, that Perryman had really talked it down, predicting
a 40-percent chance of winning the arbitration. He fur-
ther said that, when Perryman left the meeting, he was
going to take a poll of his executive board to find out if
they wanted to arbitrate the grievance.
Ray testified that the first telephone conversation he
had with Stevens after the factfinding meeting was on
February 27. After receiving a telephone conversation
from Morgenson he telephoned Stevens and told him the
Company had decided to terminate him and that Ray
would file a grievance. The next conversation was after
Ray received the third step answer to Stevens' griev-
ance. He telephoned Stevens, told him the grievance had
been denied and that the Union would probably take it
to arbitration. According to Ray, he further told Stevens
that he should make the union meetings because the arbi-
tration had to be funded from the Union. Stevens said his
sobriety test was negative. Ray said the Company had
charged Stevens with possession rather than with con-
suming the beer. Ray denies telling Stevens not to go to
the union meetings.
Ray testified that his next conversation with Stevens
was on around May 14. Stevens telephoned and asked
how his case was going. Ray said the executive board
had voted to drop the arbitration case. Stevens said he
had won his unemployment appeal. Ray said I under-
stand you got yourself a lawyer to handle this case when
the Union dropped it. Stevens said he did not have a
lawyer and asked why the executive board dropped the
grievance. s Ray said he was not a member of the execu-
tive board so he did not know.
Ray testified that he does not recall any other tele-
phone conversations with Stevens nor does he recall sug-
gesting that Stevens take the blood test results to his
lawyer. He does not recall accusing Stevens of calling
him names but admits he may have since he had heard
that Stevens said he had jumped up and down like a ban-
shee during their conversation regarding Stevens' peti-
tion. He admits that he had a conversation with Stevens
about attending union meetings and angering union mem-
bers. However, he testified that his was prior to Stevens'
discharge. According to Ray, he asked Stevens why he
never attended union meetings. Stevens said he could not
attend because he worked nights. He also testified that
he told Stevens, "he shouldn't go around pissing off any
union members because when a member goes to the
union hall the man has got to be accepted by the mem-
bership as a union member, and the Union membership
vote whether he can be accepted or not." He does not
recall the context of these remarks nor does he recall
what prompted him to offer this advice.
Following his May 14 conversation with Ray, Stevens
spoke to Perryman on the telephone and inquired if Per-
ryman had taken a poll of his executive board. Perryman
said there must be some misunderstanding, that he did
8 According to Ray., sometime in March. Lonnie Anderson told him
that Stevens had obtained himself a lawyer, "When the Llnion had
dropped the case
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not have an executive board. Stevens told him what Ray
had said occurred at the union meeting. Perryman denied
the conduct attributed to him and informed Stevens that
Ray had not been present at the meeting. Perryman fur-
ther said that Young was going to poll the executive
board because at the meeting the vote was deadlocked at
two in favor of arbitration, two against, and one "sitting
on the fence." Perryman suggested that Stevens tele-
phone Young to inquire as to the poll. Stevens asked
Perryman what he thought of the grievance. Perryman
said he thought it was a very easy case but he could not
do anything with it until the Union turned it over to him
for arbitration.
According to Perryman, on May 14 Stevens told him
he had heard that his grievance was not going to arbitra-
tion. Perryman asked if he had talked to Young. Stevens
said no. Perryman asked if he wanted his job back. Ste-
vens said yes. Perryman explained that he had attended
the May 10 executive board meeting and that four per-
sons had voted not to take the grievance to arbitration
and one had abstained. Perryman suggested that Stevens
speak to Young and if the Company had not been noti-
fied there was a chance that the vote could be reversed.
Stevens asked what the chances were of winning the ar-
bitration. Perryman said he thought it was a good griev-
ance and he would feel comfortable handling it. 9 Stevens
said he would telephone Young.
Immediately thereafter, Stevens telephoned Young and
asked the results of the Poll. According to Stevens' un-
denied testimony, Young said it was unanimous not to
proceed to arbitration. Stevens said he had just talked to
Perryman who told him it had been a tie vote so he
could not understand how it came to be unanimous.
Young said actually the vote was six against, and one for
arbitration. Stevens asked if there was anything he could
do, and whether he should have been at the previous
meeting. Stevens said Ray had told him not to come to
the meetings.
At this point, according to Stevens, Young said Ste-
vens should have gotten in contact with him. Stevens re-
minded Young that Young had previously told him to
keep in contact with Ray, to let Ray handle it.l° Young
said, "Well, that was my mistake." Young said it was
over and done with and there was nothing Stevens could
do about it. Young further said that the Leaching De-
partment was operating a lot better without Stevens. Ste-
vens asked if Young was suggesting sabotage. Young
said no he was not accusing Stevens of sabotage, that
maybe it was just a miracle that things quit breaking
down. Again, Stevens asked if there was anything he
could do. Young said no.
On April 4, the Union notified the Company of its in-
tention to proceed to arbitration. The record reveals no
reason for the failure to bring this matter before the
union membership at the April 12 meeting. On May 10,
the required quorum of seven was not present so a mem-
9 Perryman testified that it was his opinion that even if Stevens had
engaged in misconduct, the Company could not prove it
10 Stevens testified that in December, when he was discussing an over-
time grievance with Young. Young told him he should always pursue
grievances through Ray and only come to Young when Ray could not
handle it
bership meeting was not held. Instead, the executive
board met and considered the question of whether to
take the Stevens grievance to arbitration. Present for the
meeting were Young, Perryman, Nick Bravo, Lloyd Col-
lins, Haskell Conrad, and Steve Bravo.
Young testified that he opened the meeting by saying
that the Company was pressing to commence the Ste-
vens arbitration proceeding so they should take some
action on funding the arbitration. Someone asked what
the charge was. Young said the charge was having beer
in his possession. He said he thought the Union had suc-
cessfully completed the third step as far as they could,
that they had beaten down the marijuana charge and the
only viable charges were possession and being out of the
department.
Someone asked if Stevens had gone to an outside
agency. Young said he had, that he outside agency
(NAACP) had advised him and Stevens took the advice,
went to see Kennedy and told Kennedy at that time that
he did not want union representation. Therefore, Kenne-
dy did not summon a union representative. Young said
his opinion was that Stevens was a man that refused
union representation or did not indicate that he wanted it
and that he had gone to an outside agency before the ex-
haustion of the grievance process. Young said, therefore,
they were going to have to make a decision as to what
they were going to do, fund it or not fund it. He then
asked, "have you got anything to say about it, say it."
At this point, according to Young, someone said that it
did not seem that Stevens wanted the Union's help since
he had gone to the outside, and he had not come to pres-
ent his case at any time, or request help. Someone asked
if Stevens had been in contact with Young. Young said
he had neither seen nor heard from Stevens since Febru-
ary 27. Someone said, "I don't know whether we should
defend a person like that. I hate to see him lose his job
but I don't think we should defend a person like that that
has some outside activities going on." Young said, "Wait,
what the man does outside the plant is his business, has
no business coming into this discussion." Perryman also
said they should stay on the merits of the case inside the
plant.
Young said Stevens had been asked to furnish a copy
of the results of the sobriety test but he never did so.
Someone said Stevens did not want his job back, was not
really interested or he would have furnished the request-
ed information. Young asked them to vote, which they
did. According to Young, he was about the last one to
vote. He said he was votinq not to fund the arbitration
because Stevens had not furnished the requested informa-
tion, never contacted Ray or Young, and sought help
from outside people.
Perryman, Nick Bravo, and Collins also testified.
However, they did not give detailed accounts of what
occurred at the meeting. Perryman testified that the dis-
cussion was that Stevens had not attended any union
meetinqs since the grievance was filed and had not asked
that it be processed through arbitration. Nick Bravos tes-
tified that he cannot recall what was said except for
some expression of surprise that Stevens was not present.
He cannot recall any discussion of the circumstances lea-
INTERNATIONAL CHEMICAL WORKERS, LOCAL 190 1541
dinq to the discharge. The only information he had was
obtained through plant gossip. He had heard that Ste-
vens took a blood test which was negative and that
Briones had not been at the plant that night. He does not
think any mention was made at the meeting as to Briones
not being in the plant. According to Bravo he really was
not payinq that much attention. Everyone voted orally
and stated their position. Young did not vote first.
Young did not state his position as to how he felt about
Stevens' case. I do not credit Bravo that Young did not
state his position. Young testified that he did state his po-
sition, but that he did so after the others voted. I do not
find this timing to be significant inasmuch as his stated
position was almost identical to the remarks with which
he opened the meeting. Also I do not credit Young's tes-
timony that he told the executive board not to consider
Stevens' outside activities. Young was the one who em-
phasized Stevens going to an outside agency. Bravo testi-
fied that he voted against funding the arbitration but did
not give a reason. According to Bravo, "I voted no be-
cause I felt that the company had a pretty good case
against Ron Stevens, as far as what they found up there
and what I had heard. And Ron Stevens, I felt, also that
he was not a very good union member, and I felt he
wasn't a very good employee. I felt we were wasting
union money to fund Ron Stevens. That was my opin-
ion." When asked if not attending union meetings was
the reason he thought Stevens was not a good union
member, Bravo testified:
A. No. Not only that, he was out of his depart-
ment a lot. He was all over the plant with petitions
most of the time. I don't know what they were
about. He always had a petition with him of some
kind, having people signing something. He never
did approach me on it, but I've seen him with it. He
was always all over the plant, not taking care of his
department ....
[H]e never showed up at the meetings. He has
carried out petitions in the plant that I've heard of
that were against things that happen at the union
hall, things that he felt weren't right. He never
showed up at the union hall to put out his view on
it, but he was always in the plant with petitions.
Collins was the only one who testified that there was
some discussion of the merits of Stevens' grievance. Ac-
cording to him, Young said they had gone through the
third step of the grievance procedure and the Company
had refused to reinstate. Young further said that, from
some vantage point, Wall had observed Stevens and
Brionps exchanqe a parcel. Later, Wall had found two
empty beer bottles and a full one in Ron's department.
Based on this, the Company had discharged Stevens for
Possession of beer. He mentioned that Wall was the
Company's only witness but Collins does not recall
Young mentioning anything else that might be consid-
ered as weak points in the Company's position. Nor does
he recall anything being said with regard to outside
agencies. Young gave everyone an opportunity to state
their position. According to Collins, nearly all of them
said they felt that the Company's case was so strong that
the Union would probably lose on arbitration. Young
said he thought the Company had a strong case. Collins
asked if Stevens had requested the Union's help. Young
said he had not been asked to take the grievance to arbi-
tration.
I do not credit Collins that the merits of the grievance
were discussed. He is the only one to so testify. Further
he is the Union's recording secretary and his minutes of
the June 14 membership meeting reads, inter alia:
Executive board Report:
Five members met on May 10th to discuss help for
local 882 also a vote was taken by board members
on funding arbitration of Ron Stevens' case. Due to
the fact Stevens had gone to outside for help and
had not asked for Union help, four members voted
no and one abstained. Poll of absent board members
was taken-The total was seven no and two did not
vote Report of Executive board was read and ap-
proved.
Within the next day or two after the executive board
meeting, Young and Ray polled other members of the
executive board. Tony Santillan testified that several
weeks before May 10 he spoke to Ray and to Bravo con-
cerning Stevens. In the conversation with Ray, Santillan
asked why Stevens was discharged. Ray said Stevens got
caught with possession of beer. As to the conversation
with Bravo, Santillan testified that Bravo asked how he
was going to vote on funding the Stevens' arbitration.
Santillan said he was going to vote no. Bravo said he
was going to vote no also. When asked if they discussed
why they were going to vote no, Santillan testified, "I
think he agreed with me because he thought possession
of beer was enough evidence plus here was a few other
things about that other man that he was telling me, that
Harold Sullivan said that he was kind of annoyed with
[Stevens] and I don't know what else we were talking
about."
Santillan testified that because of the above conversa-
tion, he knew about Stevens' discharge and grievance
prior to beinq polled by Young. On May 11, according
to Santillan, Younq explained that Stevens was caught
with possession of beer in his department and asked if
Santillan knew anything about it. Santillan said he knew
nothing about it because he was workinq that night.
Young said Stevens was supposed to have been drinking
but that was not proven and he was out of his depart-
ment. Young said a full bottle of beer was found. He
does not recall Young relating any of the discussion at
the executive board meetinq nor that Young mentioned
the blood alcohol test, or Stevens going to an outside
agency. One of them did say that Stevens had never
been sworn into the Union; however, Santillan testified
that he does not recall the context in which this state-
ment was made. l
" Employee Daniel Gloria testified that he asked Santillan how he
voted Santillan said he voted no Gloria accused him of oting no he-
cause he did not like Stevens Santillan admitted that he did not like Ste-
vens and mentioned that when Stevens first started working there he had
Continued
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Powell Smith was polled by Ray on May 11. Accord-
ing to Smith, Ray asked if he was aware of the Stevens'
case. Smith said yes. Ray said, we need to take a poll on
whether to go to arbitration and asked for Smith's vote.
Smith first said he was voting no. Then he changed and
abstained.
Following the decision of the executive board, the
Union requested another meeting with the Company on
the Stevens' grievance. The meeting was held on May
14. Present were Young, Ray, Kennedy, and Morgenson.
Young and Ray proposed they avoid arbitration by rein-
stating Stevens without loss of pay. Kennedy refused,
saying that the department had been running pretty
smoothly. Young and Ray then proposed that Stevens be
reinstated without backpay. Kennedy refused. Young
said he had another proposal on which Stevens had not
been consulted, which was to reinstate him to the extra
crew at extra crew rate with no loss of seniority and no
backpay. Kennedy considered that for a moment and
then refused. Young then said the Union was dropping
the arbitration.
Lonnie Anderson testified that after the filing of the
charge herein, he had a conversation with Young con-
cerning Stevens. According to Anderson, Young said
you know we have a complaint against us. He also said
that Anderson was the person who probably helped Ste-
vens "get this started." Young further said, "I don't even
want you to go outside and get help." Anderson uttered
some profanities and said Young could not tell him what
to do, that from what he had seen happening in the
union lately when he got ready for help, he would need
outside help. Finally, Young said, "Well, I ought to take
you to the front office." Anderson said, "If you do, I
would have the Union and the Company in my hip
pocket."
Conclusion
The General Counsel argues that Respondent refused
to take Stevens' grievance to arbitration in retaliation for
Stevens protesting the activities of Chief Shop Steward
Billy Ray, and because he did not attend union meetings
and went to an outside agency for assistance. Respondent
has made a strong argument assailing Stevens' credibility,
all aspects of which I have fully and carefully consid-
ered. However, notwithstanding these arguments, I do
credit Stevens as to the events following his discharge 2
principally because most of his testimony is either cor-
roborated or undenied and, where there are areas of dis-
short hair, real "clean cut" and now he looked like a hippy or a bum
with his long hair and beard. Gloria said that had nothing to do with his
work, that Stevens was a reliable worker. Santillan said Ray had said
there was only a 40-percent or less chance of the Union winning the arbi-
tration. Gloria mentioned the negative blood alcohol test and that Ste-
vens had won his unemployment appeal. Santillan said he did not know
what Gloria was talking about. Then he said that Stevens never went to
union meetings. Santillan admits that he discussed how he voted with
Gloria. He thinks he told Gloria that he voted no because the Company
had enough evidence. He did not tell Gloria that he voted no because of
Stevens' long hair and beard. He does not deny the statement regarding
attendance at union meetings.
15 I find it unnecessary to reach the question of whether he actually
engaged in the misconduct of which he was accused. Rather, what is per-
tinent is the information in Respondent's possession and upon which it
based its decision. His grievance is clearly not frivolous.
pute, generally his testimony is more consistent with
other record evidence than that of opposing witnesses.
The principal areas of such dispute involve Young's
testimony that he told Stevens to provide the Union with
a copy of the blood alcohol test; the timing of Ray's
statement that Stevens should not anger union members;
Stevens' testimony that Ray told him to take the results
of the test to a lawyer; and Stevens' testimony that Ray
told him it was not necessary for him to be present at the
union meeting to request that his grievance be taken to
arbitration. In regard to the latter, I note that, although
when Stevens gave summary accounts of Ray's state-
ment he tended to say that Ray told him not to attend
the meeting, when he attempted to detail precisely what
was said, the statement he attributed to Ray clearly con-
veyed only that it was not necessary for Stevens to be
present.' 3 Thus, I do not find that Ray specifically in-
structed Stevens not to attend union meetings. However,
I do not credit Ray that he specifically advised Stevens
to attend the meetings. Considering Stevens' active at-
tempts to take what steps he could to secure reinstate-
ment and unemployment compensation, I find it unlikely
that he would have failed to attend the Union meetings if
Ray had told him his presence was necessary or would
be helpful.
Lonnie Anderson corroborates Stevens' testimony as
to what was said immediately after the February 27
meeting regarding the blood alcohol test. I found Ander-
son to be an honest, reliable witness whom I credit. Ray
does not deny telling Stevens to take the result of the
blood alcohol test to a lawyer, and such a comment is
consistent with the February 27 discussion, which Young
admitted, regarding Stevens obtaining a lawyer for a
civil suit against the Company and with Ray's admitted
indication of disinterest in the results because the charge
was possession, rather than consumption of alcohol.
It is undisputed that Respondent vigorously pursued
Stevens' grievance through step three of the grievance
procedure. Thus, the sole issue is whether Respondent
unlawfully refused to process the grievance to arbitra-
tion. It is well-settled that a union which enjoys the
status of exclusive collective-bargaining representative
has an obligation to represent employees fairly. This
duty of fair representation requires that a union serve the
interest of all bargaining unit employees fairly and in
good faith and without hostile discriminations against
any of them on the basis of unfair, arbitrary, irrelevant
or invidious distinctions. Vaca v. Sipes, 386 U.S. 171
(1966); Local Union No. 12, United Rubber, Cork, Lino-
leum & Plastic Workers of America [Goodyear Tire &
Rubber Co.] v. N.L.R.B., 368 F.2d 12 (5th Cir. 1966),
cert. denied 389 U.S. 837; Miranda Fuel Company, Inc.,
140 NLRB 181 (1962). However, mere negligence or
poor judgment is insufficient to establish a breach of
13 Nevertheless, I do not doubt that in view of Ray's statement about
angering union members Stevens may have honestly received the impres-
sion that he should not attend the meetings. I credit Stevens that the
statement about angering union members was made in the postdischarge
conversations with Ray rather than in earlier conversations as contended
by Ray. In this regard, I note that Ray was unable to give the context of
such statement or explain the reason for making it at this alleged earlier
time.
INTERNATIONAL CHEMICAL WORKERS. IOCAL 190() 1541
such duty and an employee has no absolute right to have
his qrievance processed to arbitration for, as the Su-
preme Court has recognized, the Act does not guarantee
the quality of representation and the effective administra-
tion of contractual grievance machinery requires that a
union be afforded a broad range of discretion in deciding
what grievances to pursue and the manner in which they
should be handled. Vaca v. Sipes, supra, at 191-192; Ford
Motor Company v. Huffman, 345 U.S. 330, 338 (1953);
Glass Bottle Blowers Association of the United States and
Canada, AFL-CIO, Local No. 106 (Owens-Illinois, Inc.),
240 NLRB 324 (1979); Local 417, International Union.
United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW) (Falcon Industries, Inc.), 245
NLRB No. 75 (1979); Truck Drivers, Oil Drivers, etc.,
Local No. 705 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Asso-
ciated Transport, Inc.), 209 NLRB 292 (1974); Teamsters
and Chauffeurs Local Union No. 729 (Penntruck Co.,
Inc.), 189 NLRB 696 (1971). The test is whether the
Union's conduct toward a unit employee is arbitrary, dis-
criminatory, or in bad faith. A union has violated its
duty of fair representation and Section 8(b)(1)(A) of the
Act only if this question can be answered in the affirma-
tive. Miranda Fuel Co., Inc., supra.
The General Counsel argues that Respondent decided
to drop Stevens' grievance in retaliation for his protest-
ing the manner in which Ray polled employees on the
schedule change, conducting his own poll, and complain-
ing to Young concerning Ray's reaction to Stevens' poll.
I find the evidence insufficient to support this contention.
I do not credit Edge that Ray said he would not repre-
sent Stevens if he ever got into trouble. In this regard, I
note that when Stevens later got into trouble Ray vig-
orously represented him up through step three. I further
note that Edge admits that the conversation occurred in
a cocktail lounge where the loud music possibly impaired
hearing 4 and that, in a similar conversation, according
to Lonnie Anderson's credited testimony, Ray said the
leaching department was going to get into trouble one of
these days and the leaching department and Stevens
were going to need his help.' He did not say that he
would not give them this help. In the circumstances, I
find Ray's statement could easily have been nothing
more than speculation that some misconduct would be
discovered. In all the circumstances, I find that the evi-
dence is insufficient to establish that Ray's statements
constituted threats in violation of Section 8(b)(1)(A) of
the Act or are indicia of illegal motivation. Further, al-
though the evidence does indicate that Ray was irritated
by Stevens' circulation of the petition for another poll as
to schedule change, I find the evidence insufficient to es-
tablish that this caused him to fail to represent Stevens
properly. ' 6
14 Although Edqe testified that Lonnie Anderson was present, Ander-
son was not questioned in this regard.
" It is apparent from the testimony that there was some suspicion, or
at least rumors, of the use of drugs and alcohol in the department and the
alleged statements arose in the context of a discussion as to alleged mis-
conduct of another employee in that department.
'6 I do however find that Ray's statement regarding angering union
members and not being sworn in indicates an awareness that improper
consideration might influence the decision
I do find, however, that the executive board used im-
proper considerations in its determination of whether
Stevens' grievance should be funded for arbitration.
Thus, Bravo testified that he voted against funding the
arbitration because, inter alia, he did not believe that Ste-
vens was a good union member, citing his propensity to
circulate petitions in protest of union conduct. Santillan
testified that he and Bravo discussed voting no because,
among other things, as a fellow employee, did not like
him. Further, when Young polled him for his vote on
the matter, they discussed the fact that Stevens had
never been sworn into membership. Also the executive
board's report and the testimony of various members
show that the executive board decided not to fund the
arbitration because Stevens had not attended union meet-
ings subsequent to his discharge, had not been sworn into
membership and he had gone to an "outside agency" for
assistance without any substantial discussion of the
merits. These are impermissible considerations of union
regularity prohibited by Section 8(b)(l)(A) of the Act.
Respondent argues the financial considerations inher-
ent in a decision to proceed to arbitration. However, as-
suming that the Union's financial resources are a legiti-
mate consideration, there is no evidence that the execu-
tive board gave any consideration to this factor. Re-
spondent further argues that Young is not a lawyer nor
even a full-time paid representative of Respondent, the
argument seeming to be that, therefore, he should be
held to some lesser degree of responsibility.
While it is arguable that a union representative who
holds full-time other employment cannot be reasonably
expected to bring to grievance processing the same ex-
pertise and sophistication as a full-time union representa-
tive, what is involved here requires neither expertise nor
sophistication-only an old fashioned sense of fair play.
Young either deliberately lied to the executive board re-
garding the interest Stevens had shown in the progress
of his grievance or he indicated erroneously that Stevens
had shown no interest even though he was uninformed
in this regard. Thus, he said that Stevens had never con-
tacted him.
Also Young said that Stevens had never given him the
results of the blood alcohol test even though he knew
that he had indicated to Stevens a lack of interest in this
test and further that the test was not pertinent to a
charge of possession of alcohol. He placed great empha-
sis on Stevens goinq to an outside agency even though
he knew that he had suggested that Stevens get other as-
sistance as to matters arising out of the discharge which
were not encompassed by the grievance procedure and
either knew that Stevens had subsequently indicated to
Ray his continued interest in his grievance going to arbi-
tration or knew that he was not sufficiently informed as
to whether Stevens had indicated such interest.
The duty of fair representation is, to some extent, an
affirmative one. At the very least, it requires that once
decisionmaking is undertaken it be supported by some
relevant reason adhered to in good faith. See General
Truck Drivers, Warehousemen, Helpers and Automotive
Employees, Local 315, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Rhodes & Jamieson, Ltd.), 217 NLRB 616 (1975). Any-
thing less is arbitrary conduct prohibited by the Act.
Here Respondent had not met that test for, even assum-
ing, arguendo, that the discussion by the executive board
could be characterized as a concern with the extent of
the grievant's interest in arbitration rather than a concern
with union regularity, and further assuming, arguendo,
that, when a union has to make decisions as to the allo-
cation of limited financial resources for arbitration, a le-
gitimate factor for consideration might be the grievant's
lack of expressed interest in pursuinq the grievance; here,
Young has either deliberately misinformed the executive
board as to Stevens' continued interest or has deliberate-
ly misled the board as to the extent of his knowledge of
Stevens' interest. 1 7
I conclude that such cavalier perfunctory handling of
a grievance constitutes arbitrary conduct. I further con-
clude that the determination to not proceed to arbitration
was motivated by considerations of union membership.
Accordingly, I find that Respondent refused to process
the discharge grievance of Ronald Stevens for unfair, ar-
bitrary, irrelevant, and invidious reasons, in violation of
Section 8(b)(l)(A) of the Act. I further find that Re-
spondent violated Section 8(b)(l)(A) of the Act by
Young telling Anderson that he never wanted him to go
outside and get help.'8 In view of Young's reference to
the complaint 9 filed against Respondent and of the deci-
sion not to take Stevens' grievance to arbitration partial-
ly because he went to an "outside agency," I find that
this statement constitutes a threat to withhold representa-
tion by Respondent if Anderson sought assistance from
other sources including the National Labor Relations
Board.
CONCLUSIONS OF LAW
1. FMC Corporation is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Respondent International Chemical Workers Union,
Local No. 190, is a labor organization within the mean-
ing of Section 2(5) of the Act, and at all times material
herein has been the exclusive representative of certain
employees of the Employer for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
3. By refusinq to process the discharge grievance of
Ronald Stevens to arbitration because of unfair, arbi-
trary, irrelevant, and invidious reasons; and by threaten-
ing an employee with the withholding of representation
if he sought assistance from some agency other than Re-
spondent, Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sections
8(b)(1)(A) and 2(6) and (7) of the Act.
7 The employer was notified that the request for arbitration was being
withdrawn even though the action of the executive board was subject to
approval of the membership.
' I do not find that Young's statement about taking Anderson to the
front office to be a threat in violation of Sec. 8(b)(I)(A). Respondent's
argument that this remark was related to the admitted profanity used by
Anderson during the conversation is at least as plausible as General
Counsel's argument.
19 I find that this is a reference to the charge herein.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act. I have
found that Respondent's decision not to process the dis-
charge grievance of Ronald Lee Stevens to arbitration
was made in an unlawful manner. However, the griev-
ance is now time-barred and the Employer has indicated
that it will not waive the time limitations set forth in the
collective-bargaining agreement. Thus, it may not now
be possible to determine through the arbitration proce-
dure whether the grievance is meritorious. This uncer-
tainty is the direct product of Respondent's unlawful
action and where, as here, resolution of that uncertainty
is required for the purposes of determining monetary re-
sponsibility, it is proper to resolve the question in favor
of the injured employee and not the wrongdoer. I shall
therefore presume that, if only proper considerations had
been used, Respondent would have decided to arbitrate
Stevens' grievance and that such arbitration would have
resulted in a finding that the grievance was meritorious
and that Stevens was entitled to reinstatement and back-
pay. Local Union No. 2088, International Brotherhood of
Electrical Workers, AFL-CIO (Federal Electric Corpora-
tion), 218 NLRB 396 (1975). Accordingly, I shall recom-
mend that Respondent make Ronald Lee Stevens whole
for any loss of earnings he may have suffered as a result
of his discharge until the earlier of the following occurs:
Respondent secures arbitration of Stevens' grievance by
the Employer and thereafter pursues it in good faith and
with all due diligence, Stevens is reinstated by FMC
Corporation; or he obtains other substantially equivalent
employment. Massachusetts Laborers' District Council of
the Laborers' International Union of North America (Man-
ganaro Masonry Co.), 230 NLRB 640. Backpay shall be
computed with interest as prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977).20
Upon the foregoing findings of fact and conclusions of
law and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the National Labor Relations Act,
as amended, I hereby recommend the following:
ORDER 2 1
The Respondent, International Chemical Workers
Union, Local No. 190, its officers, agents, and repre-
sentatives, shall:
I. Cease and desist from:
(a) Refusing to process to arbitration employee griev-
ances for reasons which are unfair, arbitrary, irrelevant,
or invidious.
20 See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962).
2l In the event no exceptions are filed as provided in 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 waised for all purposes.
INTERNATIONAL CHEMICAL WORKERS, LOCAL 190 1545
(b) Threatening employees with the withholding of
representation if they seek assistance from any agency
other than Respondent.
(c) Restraining or coercing employees of FMC Corpo-
ration in any like or related manner.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
(a) Request FMC Corporation to reinstate Ronald Lee
Stevens to his former position or, if it no longer exists, to
a substantially equivalent position. If FMC refuses to re-
instate him, ask it to arbitrate the grievance concerning
his termination and thereafter pursue that grievance in
good faith with all due diligence.
(b) Make Ronald Lee Stevens whole for any loss of
earnings he may have suffered as a result of his discharge
by FMC from February 27, 1979, until such time as he is
reinstated by FMC or obtains other substantially equiva-
lent employment or Respondent secures arbitration of his
grievance by the employer and thereafter pursues it with
all due diligence, whichever is sooner, together with in-
terest, all to be computed in the manner set forth in the
section of this Decision entitled "The Remedy."
(c) Post at its business office, meeting halls, or other
places where it customarily posts notices, copies of the
attached notice marked "Appendix." 2 2 Copies of said
notice, on forms provided by the Regional Director for
Region 32, shall, after being duly signed by an author-
ized representative of Respondent Union, be posted by
Respondent Union immediately upon receipt thereof and
be maintained for 60 consecutive days thereafter. Addi-
tional copies of said Appendix shall be duly signed by an
authorized representative of Respondent Union and fur-
nished to the said Regional Director for transmission to
Respondent Employer for posting by Respondent Em-
ployer in accordance with the Order directed to Re-
spondent Employer above.
(d) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the otice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court orf Appeals Enforcing an
Order of the National Labor Relations Board "