Local Union No. 1150, Steelworkers

National Labor Relations Board - Board Decisions

Mar 29, 1974

209 N.L.R.B. 917 (N.L.R.B. 1974)

LOCAL UNION NO. 1150, STEELWORKERS 917
Local Union No. 1150, United Steelworkers of Ameri-
ca, AFL-CIO (FMC Corporation ) and John V.
Warrenburg. Case 25-CB-1709-2
March 29, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On October 10, 1973, Administrative Law Judge
Abraham H. Maller issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent Union filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
ABRAHAM H . MALLER, Administrative Law Judge: On
June 29, 1973, the Regional Director for Region 25 of the
National Labor Relations Board , herein called the Board,
issued on behalf of the General Counsel a complaint
against Local Union No. 1150, United Steelworkers of
America, AFL-CIO, herein called the Respondent.'
Briefly, the complaint alleged that the Respondent , a labor
organization within the meaning of Section 2(5) of the Act,
was the exclusive collective -bargaining representative of
the employees of FMC Corporation (herein referred to
variously as FMC or the Employer), including the
Charging Party; that since on or about November 18, 1972,
the Respondent has restrained and coerced, and is
restraining and coercing , the employees of FMC in the
exercise of the rights guaranteed in Section 7 of the Act, by
knowingly, without good cause and in bad faith, and
because the Charging Party had filed charges under the
Act and engaged in other activities protected by the Act,
failing and refusing to receive and process the Charging
Party's grievance against FMC, when requested to do so by
the Charging Party, in violation of Section 8(b)(1)(A) and
Section 2(6) and (7) of the National Labor Relations Act,
as amended (29 U.S.C. § 151, et seq.), herein called the Act.
In its duly filed answer, the Respondent denied any
violations of the Act.
Pursuant to notice, a hearing was held before me at
Indianapolis, Indiana, on August 16, 1973. All parties were
represented at the hearing and were afforded full opportu-
nity to be heard, to introduce relevant evidence, to present
oral argument and to file briefs with me. Briefs were filed
by both parties on September 24. Upon consideration of
the entire record2 and the briefs, and upon my observation
of each of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
FMC Corporation is, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the State of Delaware. At all times
material herein, the Employer has maintained offices and
places of business at Indianapolis, Indiana, and various
other facilities throughout the United States, and is, and
has been at all times material herein, engaged at its
Indianapolis, Indiana, facility and location in the manufac-
ture, sale, and distribution of chains and related products.
During 1972, a representative period, the Employer, in the
course and conduct of its business operations, purchased,
transferred, and delivered to its Indianapolis, Indiana,
facility goods and materials valued in excess of $50,000
which were transported to said facility directly from States
other than the State of Indiana. During 1972, a representa-
tive period, the Employer, in the course and conduct of its
business operations, manufactured, sold, and distributed at
said Indianapolis, Indiana, facility, products valued in
excess of $50,000 which were shipped from said Indianapo-
lis, Indiana, facility, directly to States other than the State
of Indiana. Accordingly, I find and conclude that FMC
Corporation is an Employer engaged in commerce within
the meaning of the Act and that it will effectuate the
policies of the Board to assert j unsdiction here.
H. THE LABOR ORGANIZATION INVOLVED
Respondent, Local Union No. 1150, United Steelworkers
of America, AFL-CIO, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ISSUE
Whether the Respondent without good cause, and in bad
faith , and because the Charging Party had filed charges
under the Act and had engaged in other activities protected
by the Act, failed and refused to receive and process the
Charging Party's grievance against the Employer when
requested to do so by the Charging Party.
i The complaint was issued upon a charge filed on May 18, 1973, by
John V. Warrenburg
2 The Respondent has filed a motion to correct the record in certain
particulars. The General Counsel has filed a partial opposition to said
motion and . in addition , his own motion to correct the record. No
opposition to the General Counsel' s motion has been received. Upon
consideration of the motions , it is hereby ordered that both motions be and
they are hereby granted and that the record be corrected as requested.
209 NLRB No. 159
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE ALLEGED UNFAIR LABOR PRACTICES C. Events Leading to the Filing of the Charge
Herein
A. Background
At the request of both the General Counsel and the
Respondent, I have taken judicial notice of an earlier
Board proceeding as follows: FMC Corporation, Link-Belt
Chain and Conveyor Components Division, et aL, Cases
25-CA-5312 and 25-CB-1618. This was a proceeding in
which Warrenburg was the Charging Party, and the
Employer and the Respondent herein were named as
Respondents. The proceeding grew out of the alleged
delinquency of Warrenburg in the payment of union dues,
as a result of which the Respondent herein, under its
collective-bargaining agreement with FMC advised the
latter of Warrenburg's suspension from membership,
causing FMC to suspend Warrenburg until he had paid the
delinquent dues. On June 27, 1973, Administrative Law
Judge Maurice S. Bush, issued a Decision and Recom-
mended Order (JD-433-73) dismissing the complaints in
their entirety. The General Counsel has filed exceptions to
the Decision. As of the time that the instant Decision is
being prepared, the Board has not issued its Decision in
that proceeding.
B. The Grievance Procedure
The collective-bargaining agreement between the Res-
pondent and the Employer contains a comprehensive
procedure for the processing of grievances, leading to
arbitration. The first step consists of an informal discussion
of the grievance between the employee, with or without a
steward, and the foreman. The pertinent provision pre-
scribing the first step reads as follows:
Article VI-ADJUSTMENT OF GRIEVANCES
1.1 Section 1. The term "Grievance" as used in this
Agreement is limited to a complaint which has not been
settled as a result of the discussion required in sub-
paragraph (a) and which involves the interpretation or
application of, or compliance with, the provisions of
this Agreement.
1.2 The following procedure will be followed:
(a) Any employee who believes he has a grievance shall
discuss the grievance with his Foreman, with or without
the departmental Union Steward and/or the Area
Chief Steward being present, as he may elect, in an
attempt to settle the same ; provided that the Steward or
Chief Steward shall be afforded the opportunity to be
present at the adjustment of any grievance where the
employee is not represented by a Steward or Chief
Steward. The Foreman shall give his answer as soon as
practical, but not to exceed two (2) working days after
the grievance is made.
3 Chief Steward Bowers admitted having the foregoing conversation with
Warrenburg, but his version is somewhat different According to Bowers, he
told Warrenburg : "Well John , would you want to go in with me right now
Warrenburg is employed in department 105, which
comprises 130 to 140 employees. In November 1972,
Warrenburg complained to William Bowers, chief steward
of department 105, about the fact that his group leader was
given the opportunity to work overtime, whereas Warren-
burg did not have that opportunity, although he, Warren-
burg, on occasions took the group leader's place when the
latter was not present, and Warrenburg thought that the
opportunity for overtime should be equalized. Chief
Steward Bowers advised Warrenburg to take the matter up
with Acting Steward Gordon Reed, and Warrenburg and
Reed thereupon went to the office of Department
Superintendent Butler. They discussed the matter with
Superintendent Butler who said he would take the matter
up with other management personnel and would let Chief
Steward Bowers know of the decision. Warrenburg heard
nothing from Superintendent Butler who thereafter was
transferred, and Chief Steward Bowers did not report
further to Warrenburg.
Nothing further happened on this grievance, and
Warrenburg did not press the grievance until May 7, 1973,
because in the interim and until the latter part of April
1973, Warrenburg received overtime work.
On May 7, Warrenburg observed his steward, Kenneth
Havlin, talking to Alta Meadows, another employee in that
department. Meadows was complaining about the fact that
she was not receiving overtime work, although an employ-
ee with less seniority had been working overtime. Warren-
burg told Steward Havlin that when the latter finished with
Meadows, he, Warrenburg, wanted to file two grievances
of his own. Steward Havlin replied that he would get to
him in a minute.
About an hour later , Chief Steward Bowers came to
Warrenburg's work area and told him that Steward Havlin
had asked him to see Warrenburg. Warrenburg told
Bowers that an employee with less seniority was getting
overtime on a job that he, Warrenburg, was qualified to
do; also, Warrenburg raised the problem previously
discussed in November 1972 about the group leader's
getting overtime, in preference to Warrenburg . Bowers
replied that the rule of thumb was that if less than half of
the people worked, the group leader got the overtime.
Warrenburg replied that he would still have to file a
grievance about the matter. Bowers then told him to go
back to his steward.3
Warrenburg thereupon went to Steward Havlin's work
area and said, "Bill Bowers told me to go back through
you, to go into the office of the foreman to process the
grievance." Steward Havlin replied, "Okay, John, when we
get a chance, we'll go in." Later, when Warrenburg was at
the coffee machine, Steward Havlin walked up to him and
suggested that they go to the foreman's office. They went
to the office and found that the foreman was busy with
other employees. Steward Havlin said, "He's busy now, I'll
come and get you later."
to see Bill Mitchell [the foreman I?" To this, Warrenburg replied, "No, I'll
see Kenny Havlin "
LOCAL UNION NO. 1150, STEELWORKERS
The foregoing represents Warrenburg's testimony of
what occurred between himself and Steward Havlin.
Havlin's account is somewhat different, but the differences
do not raise any credibility questions which must be
decided, inasmuch as the net effect of both Havlin's and
Warrenburg's accounts is the same . Havlin, who is no
longer a steward, testified that when they went to the
foreman's office, the foreman was not there, and Havlm,
noting the time, told Warrenburg that they were not
supposed to take up any union business after 3:45 p.m.
Therefore, Havlin told Warrenburg that he would take the
matter up the first thing in the mormng. Havlin testified
credibly that he forgot about Warrenburg's complaints and
that Warrenburg did not remind him. Warrenburg admit-
ted that he did not remind Havlin. He admitted further
that although he sees Havlin between four and six times a
day, he never asked Havlin about the grievance, taking the
position that it was Havlin's duty to pursue the matter.
Havlin testified further that a week later he went on his
vacation and that employee Norman Rusher was his
replacement steward when he was on vacation. Warren-
burg admittedly did not discuss the matter with Rusher
either.4
Warrenburg testified further that on May 14, he had a
conversation with Ray Neville, then cochairman of the
Union's grievance committee. According to Warrenburg,
he told Neville that he wanted to file a grievance and was
going to go to the National Labor Relations Board if he
got no action on it. Neville replied that he would call the
Respondent's president, and would get the matter straight-
ened out, and urged him not to "go downtown." An hour
later, Neville reported that he had called President
Stammer who was going to make a complete investigation
and would advise him further. The next day, Warrenburg
approached Neville and asked him if he had heard
anything about his grievance. Neville replied in the
negative , but added that he had received a letter from the
president removing him as cochairman of the grievance
committee .5 Neville added that he had talked with Vice
President McCarrell- and Chief Steward Bowers , but had
received no satisfaction-that they acted like they didn't
know what Neville was talking about. In the latter part of
July, Warrenburg had a further conversation with Neville
who told him: "John, I myself talked to Kenneth Havlin
after he came back from vacation and I advised him to go
to you and admit that he had forgotten to take you into the
office and offer to take you in now." Warrenburg replied
that he had not heard anything from Havlin.6
D. Conclusions
It is clear from the record that Warrenburg faded to
exercise normal diligence in pressing his grievance. To the
contrary, it appears that he sat back and refused to remind
Havlin of his grievance, even after Neville told him that
Havlin had forgotten about the matter, taking the position
that, since he pays dues to the Union, it was the steward's
David McCarrell , vice president of the Respondent Union, testified
without contradiction that Warrenhurg never asked him to file a grievance;
that he makes a tour through Department 105 every morning and has seen
Warrenburg in the department almost every morning, and that Warrenburg
never spoke to him about a grievance.
919
obligation to come to him. Not only did he fail and refuse
to remind Steward Havlin of his grievance, he also failed to
remind Chief Steward Bowers of his grievance, and even
though Vice President McCarrell went through the
department every morning, Warrenburg said nothing to
him about the grievance. This, then, is not a case of a
grievant repeatedly knocking on the Union's doors and
demanding that it process his grievance-and of the
Union's adamant refusal to do so.
I find plausible Havlin's testimony that the next day he
forgot about Warrenburg's grievance and I credit it. Havlin
then a working steward had grievances from other
employees which also demanded his attention.
There is no direct evidence that the Respondent refused
to process Warrenburg's grievance. To the contrary,
Havlin did go with Warrenburg to the foreman's office the
very day that Warrenburg complained to him. Only the
unavailability of the foreman prevented Havlin's taking the
first step of the grievance procedure on the day that
Warrenburg complained to him. That Havlin forgot about
the matter thereafter amounts, at most, to a failure to act.
And while a failure to act may in some circumstances be
equated with a refusal to act, it may not be so equated in
the instant case in view of Warrenburg's adamant refusal
to remind Havlin of his grievance or to complain to the
Chief Steward of Havlin's failure to act.
The General Counsel's case rests upon two inferences:
one, that Warrenburg's charge in the prior case so angered
the Respondent that it retaliated by refusing to process his
grievance; and, two, that Neville's removal as cochairman
of the grievance committee was caused by his interest in
Warrenburg's grievance, thereby demonstrating the Res-
pondent's animus toward Warrenburg. In the circum-
stances of this case, such inferences as may be drawn fall
far short of establishing the General Counsel's case. Thus,
although the filing of the charge in the prior case naturally
may have offended the Respondent, it does not follow that
the Respondent attempted to retaliate by not processing
the grievance. To the contrary, as noted above, Havlin did
attempt to take the first step of the grievance procedure,
and it was only the unavailability of the foreman that
prevented him from doing so. Had Warrenburg thereafter
kept after Havlin to process the grievance, and had Havlin
refused to do so, a different conclusion might be drawn.
But as noted above, Warrenburg made no attempt to
remind Havlin to process his grievance.
As to the second inference, while the timing of Neville's
removal from the position of cochairman of the grievance
committee raises a suspicion that it was the result of
Neville's interest in Warrenburg's grievance, it demon-
strates at most Respondent's hostility toward Warrenburg.
Standing alone , however, it does not prove that Havlin's
failure to act, after his initial attempt to see the foreman,
was dictated by the Respondent. Certainly it does not
overcome Havlin's credited testimony that the reason he
did not pursue the matter was because he forgot about the
matter and a week later went on vacation. Manifestly, a
5 Although Neville was replaced as cochairman of the grievance
committee, he remained a member of that committee to which he had been
elected by the membership.
6 Neville was not called as a witness by either party, nor was the failure
to call him as a witness explained.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different result would obtain had Warrenburg continued to
press unsuccessfully for action on his grievance.
In sum, I find and conclude that the General Counsel
has failed to prove that the Respondent without good
cause, and in bad faith, failed and refused to receive and
process Warrenburg's grievance because Warrenburg had
filed charges under the Act and had engaged in other
activities protected by the 'Act. Accordingly, I shall
recommend that the complaint herein be dismissed in its
entirety.
2. Local Union No. 1150, United Steelworkers of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The evidence does not show that the Respondent
violated Section 8(b)(I)(A) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 7
CONCLUSIONS OF LAW
1. FMC is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
It is hereby ordered that the complaint herein be, and it
is hereby, dismissed in its entirety.
r In the event no exceptions are filed as provided by Sec. 102 46 of the as provided in Sec . 102 48 of the Rules and Regulations , be adopted by the
Rules and Regulations of the National Labor Relations Board, the findings , Board and constitute its findings , conclusions , and order and all objections
conclusions , and recommendations , and recommended Order herein shall, thereto shall be deemed waived for all purposes.