Maritime Union District 1 (Mormac Marine Transport)

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 944 (N.L.R.B. 1993)

944
312 NLRB No. 141
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent excepts to the judge’s failure to grant its motion
to strike par. 9 of the complaint because although par. 9 refers to
conduct set forth in par. 7, par. 7 does not contain any description
or allegation of the Respondent’s conduct. The reference to par. 7
is an obvious typographical error; ‘‘paragraph 7’’ clearly should
have read ‘‘paragraph 8.’’ Such an inadvertent error should not af-
fect the outcome of the case where the Respondent has not been
prejudiced because of the error. For these reasons, the Respondent’s
motion to strike par. 9 of the complaint is denied.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the judge’s findings. We note that in its
brief, the Respondent relies in part on discredited evidence.
3 The Respondent argues that the judge’s reliance on any action or
inaction prior to May 21, 1991, is improper because the complaint
does not allege that the Respondent breached its duty of fair rep-
resentation prior to that date. Although we agree that any particular
action or inaction occurring before May 21 cannot alone constitute
a violation of the Act, we find that the judge could properly consider
the events occurring before May 21 as a context for the Respond-
ent’s later conduct. We find that the judge properly relied on the
events occurring prior to May 21 as background information only.
4 The contract provides that, in the absence of extenuating cir-
cumstances, all grievances must be presented no later than 30 days
after the ship ‘‘pays off.’’ The ship ‘‘paid off’’ in this case on
March 7, 1991.
5 Member Devaney does not rely on this factor because he declines
to speculate on the timeliness of Wojcik’s grievance had the Re-
spondent submitted it to the Company. In his view, the offense cen-
ters on the Respondent telling the employee that his grievance would
be processed with the Company when, in fact, according to the cred-
ited evidence, the Respondent took no action for 9 months.
6 In finding that the Respondent breached its duty of fair represen-
tation and violated the Act, the judge implicitly concluded that the
General Counsel established that Wojcik’s grievance was not clearly
frivolous. We agree that the record establishes that the grievance was
not frivolous.
Unlicensed Division, District No. 1–MEBA/NMU,
AFL–CIO (Mormac Marine Transport, Inc.)
and Francis J. Wojcik. Case 34–CB–1495
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On April 2, 1993, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
brief and has decided to affirm the judge’s rulings,1
findings,2 and conclusions and to modify the remedy
for the reasons stated below.
We agree with the judge for the reasons stated in his
decision, that the Respondent breached its duty of fair
representation by handling Wojcik’s grievance in a
perfunctory manner. Our finding is based on the
unique combination of facts in this case. Thus, the
credited evidence shows that the Respondent assured
Wojcik in March 1991, and again in May, that his
grievance would be looked into and handled.3 Yet, the
Respondent took absolutely no action on the grievance
until December 1991, when the Respondent finally
began its investigation. On these facts, we find that the
Respondent’s inaction amounted to more than mere
negligence.
The Respondent’s contention that many grievances
in the maritime industry take a year to resolve is not
germane to this case because here it took 9 months for
the Respondent to begin even to investigate Wojcik’s
claim. In addition, we note that if the Respondent had
found that Wojcik’s grievance had merit, the Respond-
ent’s failure to act for 9 months may have foreclosed
the opportunity to present Wojcik’s grievance to the
Company because of the contractual time limits4 gov-
erning the grievance procedure.5
At the unfair labor practice hearing before the ad-
ministrative law judge, the Respondent exercised its
option under Rubber Workers Local 250 (Mack-Wayne
Closures) (Mack-Wayne II), 290 NLRB 817 (1988), to
defer litigation of the merits of Wojcik’s grievance to
the compliance stage of this proceeding. We find that
the recommended Order should be modified. When, as
in the present case, the General Counsel has met the
initial burden of proving that an employee’s grievance
was not clearly frivolous,6 the Board will permit the
respondent union to litigate the ultimate merits of the
grievance at either the initial unfair labor practice stage
or the compliance stage of a proceeding. If the union
elects to defer litigation until the compliance stage, it
is customary and appropriate to include a provisional
make-whole remedy in the Board’s order. See Service
Employees Local 87 (Cervetto Maintenance), 309
NLRB 817 (1992); Mack-Wayne II, supra at 821; and
Rubber Workers Local 250 (Mack-Wayne Closures)
(Mack-Wayne I), 279 NLRB 1074, 1075 (1986). Ac-
cordingly, we shall modify the judge’s remedy to pro-
vide that: (1) the Respondent shall request Mormac
Marine Transport, Inc. to reinstate Wojcik; (2) if
Mormac refuses, the Respondent shall promptly pursue
grievance and arbitration proceedings in furtherance of
Wojcik’s claim; (3) Wojcik shall be permitted his own
counsel in grievance and arbitration proceedings, if he
so chooses, and the Respondent shall reimburse him
for reasonable legal fees of such counsel; and (4) if for
any procedural or substantive reason the Respondent is
unable to pursue the grievance and arbitration proce-
dure, it shall make Wojcik whole for any losses suf-
fered from the unlawful failure to process his griev-
ance. Interest on any amounts owed by the Respondent
to Wojcik shall be computed in the manner proscribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
945MARITIME UNION DISTRICT 1 (MORMAC MARINE TRANSPORT)
1 Unless indicated otherwise, all dates referred to here relate to the
year 1991.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Unlicensed Division, Dis-
trict No. 1–MEBA/NMU, AFL–CIO, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
1. Insert the following paragraphs 2(a), (b), and (c)
and reletter the remaining paragraphs.
‘‘(a) Request Mormac Marine Transport, Inc. to re-
instate Francis Wojcik and, if that employer refuses to
reinstate Wojcik as requested, promptly pursue the
grievance procedure, including arbitration, in good
faith with all due diligence.
‘‘(b) Permit Francis Wojcik to be represented by his
own legal counsel in the grievance and arbitration pro-
cedure, and pay the reasonable legal fees of such coun-
sel.
‘‘(c) In the event it is not possible to pursue the re-
maining stages of the grievance procedure, resulting in
the inability to resolve the grievance of Francis Wojcik
on the merits, make Wojcik whole, with interest, for
any loss of pay he may have suffered as a result of
its unlawful conduct in failing to process his griev-
ance.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to represent employees
in collective-bargaining units which we represent, by
failing to take action on behalf of such employees for
reasons which are arbitrary, invidious or unfair.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their rights
under Section 7 of the Act.
WE WILL request Mormac Marine Transport, Inc. to
reinstate Francis Wojcik and, if that employer refuses
to reinstate Wojcik as requested, WE WILL promptly
pursue the grievance procedure, including arbitration,
in good faith with all due diligence.
WE WILL permit Francis Wojcik to be represented
by his own counsel in the grievance and arbitration
procedure, and WE WILL pay the reasonable legal fees
of such counsel.
WE WILL make Francis Wojcik whole, with interest,
for any loss of pay he may have suffered as a result
of our unlawful failure to process his grievance, if it
is not possible to determine the merits of that griev-
ance through the grievance and arbitration procedure.
UNLICENSED DIVISION, DISTRICT NO. 1–
MEBA/NMU, AFL–CIO
John Gross, Esq., for the General Counsel.
Sidney H. Kalban, Esq. (Phillips, Cappiello, Kalban, Hoff-
mann & Katz, P.C.), for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on December 16, 1992, and February 1,
1993. The complaint and notice of hearing, which issued on
September 27, 1991,1 and was based on an unfair labor prac-
tice charge filed on July 24 by Francis Wojcik, alleges that
since on or about May 21, Unlicensed Division, District No.
1–MEBA/NMU, AFL–CIO (the Union) has arbitrarily failed
to process a grievance regarding Wojcik’s discharge from his
employment with Mormac Marine Transport, Inc. (the Com-
pany) in violation of Section 8(b)(1)(A) of the Act.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a Connecticut corporation with an office
and place of business in Stamford, Connecticut, is engaged
in the interstate and foreign marine transport of bulk oil and
other freight. During the 12-month period ending August 31,
the Company received revenues in excess of $50,000 for the
performance of services in transporting freight in interstate
and foreign commerce. Respondent admits, and I find, that
the Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE FACTS
The Company operates bulk tankers, the Mormac Star, the
Mormac Sun, and the Mormac Sky, which transport oil and
other commodities to United States and foreign destinations.
Wojcik was employed on the Mormac Star in 1986; he
began working on the Mormac Sky in about 1990 as a bosun.
Basically, the bosun is responsible for the maintenance and
upkeep of work on the deck of the vessel. Wojcik was fired
by the Company on March 7; it is alleged that Respondent
failed to properly represent him regarding this discharge, in
violation of Section 8(b)(1)(A) of the Act.
At the commencement of the hearing, counsel for Re-
spondent elected to litigate the merits of Wojcik’s grievance
at a possible subsequent compliance hearing pursuant to Rub-
ber Workers Local 250 (Mack-Wayne Closures) (Mack-
Wayne II), 290 NLRB 817 (1988). Regardless, there was a
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Leit had a stroke in about April 1992. He is presently totally dis-
abled and is residing in a nursing home. He did not testify.
3 Wojcik obtained two letters from his physician. The first, dated
March 13, states that he has recurrent chest pain and was unfit for
duty. The other, dated May 17, states that for the prior 2 months,
Wojcik has been on a number of medications and restricted from
travel. It concludes: ‘‘Recent tests and evaluation indicated that he
is currently fit to resume his normal duties as of May 20, 1991.’’
considerable amount of testimony (from both sides) about the
events of March 6 and 7, when the Company fired Wojcik.
Suffice it to say that Wojcik testified that after directing and
assisting the crew in pulling up the lines, he went to clean
out a spray gun with vinyl thinner because he had been spray
painting with it earlier. While cleaning the spray gun the
vinyl thinner (highly toxic) got on his pants and into his
shoes. He immediately went to his cabin to clean his clothes
and feet of this chemical. He remained there for a short time
in order to remove this chemical. Respondent’s letter of ter-
mination states that he was terminated for ‘‘being absent
from your supervisory duties’’ on that day. The letter also
states: ‘‘You have repeatedly displayed a lack of good judg-
ment in the performance of your duties, and seem altogether
indifferent to your responsibility for the deck gang and their
endeavors.’’ Since Respondent elected to litigate this matter
at a possible subsequent compliance specification, no deci-
sion will be made regarding the merits of Wojcik’s griev-
ance.
On March 7, after Wojcik was paid, but before he left the
ship, he met Louis Tapogna, the husbanding manager for the
Company. Wojcik told him what had occurred and Tapogna
told him that there was nothing he could do at that time, that
he should take it up with the Respondent when he went
ashore and returned home to Maryland.
Wojcik called the Respondent’s office in New York on
March 12 and spoke to Al Leit, a patrolman in the port of
New York for Respondent.2 He told Leit that he was termi-
nated by the Company and wanted to know what he had to
do ‘‘in order to get the situation straightened out.’’ Leit told
him that he had to come to New York to file a grievance.
Wojcik said that he had just been released from a hospital
and was under a doctor’s care and did not know when he
would be able to come to New York to file the grievance.
Leit told him that he would have to come to New York as
soon as possible to file a grievance. Wojcik next called the
Respondent’s office on March 18; he asked Leit if he had
spoken to Nicholas LaForgia, Respondent’s branch agent, to
learn if anything had been done regarding his grievance. Leit
said that LaForgia was not in, but that he would take care
of the matter as soon as he possibly could.
His next contact with Respondent was on May 21, when
he went to Respondent’s office in New York.3 He met with
Leit and said that he was there to follow through with the
grievance. He asked if anything had been done with his
grievance, and was told that nothing was done, that he
should prepare and file the grievance. Leit also said that be-
cause the contractual 30-day time period had already elapsed,
it was possible that the grievance would fail. Wojcik gave
Leit the doctor’s two letters to establish that he could not get
to New York any earlier and Leit said that the letters would
probably have a bearing on his filing a grievance. Leit then
gave Wojcik a grievance form which he filled out and re-
turned to Leit. Leit made no comment on the contents of the
grievance.
Wojcik returned to Respondent’s hall on May 30; on that
occasion he met with LaForgia and asked him whether the
grievance he prepared had been processed. He testified that
LaForgia then asked whom he gave the grievance to, and
Wojcik said that he gave it to Leit. LaForgia then asked Leit
if he had Wojcik’s grievance and he said that he did.
LaForgia asked if Leit had done anything about it and he
said that he had not. When LaForgia asked why he had not
done anything about it, Leit said: ‘‘I was waiting for you.’’
Leit gave LaForgia the grievance; after reading the griev-
ance, LaForgia told Wojcik that it was improperly filled out
because he should have written that he was discharged with-
out just cause rather than stating the reason that he was given
by the Company for the termination. Wojcik asked LaForgia
to try to get the matter straightened out and LaForgia said
that he would look into the matter and discuss it with the
Company. Wojcik said that he would prepare a new griev-
ance, as directed, and mail it to him. LaForgia testified that
May 30 was the first time he was told that Wojcik had been
fired by the Company. On that day, Wojcik told him that he
wanted to present a grievance over his termination. He read
the grievance that Wojcik had prepared earlier and told him
that it wasn’t proper because ‘‘he didn’t list anything,’’ for
example, why he was fired. He told Wojcik to prepare an-
other grievance.
Within a few days, Wojcik sent a new grievance (five
pages) to the Respondent; it was stipulated that Respondent
received it on June 7. Wojcik’s next contact with the Re-
spondent was on July 9, when he called and spoke to
LaForgia. He testified that he asked LaForgia if anything was
done on his grievance and was told that nothing was done,
that he had not had the time to contact the Company. He
asked for another week to contact the Company and attempt
to correct the situation, and Wojcik agreed. Having received
no response from the Respondent, Wojcik sent them a letter
on July 22. The letter, basically summarizes the events stated
above and states:
Since my dismissal, over 30 days has elapsed from
the time the Union was officially notified to represent
me as a Union member, by taking this matter up with
the company.
I do not feel as if I had been treated fairly in regards
to my employment with this company and wish to be
informed by the Union as to the final outcome.
Wojcik received no response to this letter and had no contact
with the Respondent, oral or written, until he received a let-
ter dated February 14, 1992, from Sidney Kalban, counsel
for the Respondent.
LaForgia testified that after he received the corrected
grievance, he wrote to Tapogna, by letter dated June 11, en-
closing a copy of Wojcik’s grievance, requesting: ‘‘Please
send me all information in regards to Mr. Wojcik discharge
as Bosun.’’ Tapogna testified that he never saw this letter
prior to October 1992, when counsel for the General Counsel
showed it to him in preparation for this trial. LaForgia testi-
fied that about 10 days after sending this letter he called the
Company and spoke to Taponga. He said: ‘‘I sent you a let-
ter of grievance on a bosun. I haven’t heard anything.’’
947MARITIME UNION DISTRICT 1 (MORMAC MARINE TRANSPORT)
4 The collective-bargaining agreement between the parties states:
‘‘Unless extenuating circumstances exist, all grievances shall be pre-
sented no later than thirty (30) days after the ship pays off.’’
5 Admittedly, a tramp tanker, such as the Mormac Sky, is subject
to being sent anywhere at any time without prior notice, and is often
difficult to track.
Taponga said that he had received the letter and grievance,
would look into it and get back to him. Shortly after receiv-
ing Wojcik’s call on July 9, LaForgia called Taponga again
and he again said that he would get back to him, but never
did. He had no further discussions with Taponga relating to
Wojcik’s grievance and Taponga never told him that because
the 30-day period after the discharge had passed, any griev-
ance would be rejected as untimely.4 Wojcik filed the instant
unfair labor practice charge on July 24; at that time LaForgia
‘‘turned everything over to the attorneys.’’
Tapogna testified that his first contact with LaForgia re-
garding Wojcik’s discharge and grievance, was in September,
when LaForgia called him and asked for a copy of the dis-
missal letter given to Wojcik. On September 19, Taponga
faxed him the dismissal letter, together with a letter of warn-
ing dated February 26, that was given to Wojcik. He again
heard from LaForgia in July 1992 when LaForgia called him
and requested the ship’s itinerary. When Taponga asked him
why he needed it, LaForgia said that Wojcik was suing the
Union and ‘‘giving me some problems.’’ At that time,
Taponga faxed the ships itinerary to LaForgia. He never had
a conversation with LaForgia where he told him that the ship
would be in Tampa, Florida, on a certain date; however, he
speaks regularly to the Respondent’s dispatcher and may
have told her that the ship would be in Tampa at a certain
time. He was never told that a grievance was going to be
filed over Wojcik’s termination, and never told LaForgia that
he would look into Wojcik’s grievance. The Company did
not receive a copy of the unfair labor practice charge that
was filed by Wojcik. The first he learned of it was at the
end of August when he received a telephone call from the
Board agent handling the matter.
LaForgia testified: ‘‘After I found out about the Labor
Board, we investigated it thoroughly and I sent my branch
patrolman down to the ship to get statements.’’ After receiv-
ing the Labor Board charge he attempted to learn where the
ship was located in order to interview members of the crew.
In this regard, he called Taponga to learn the destination of
the ship.5 At some point, he learned that the ship would be
in the shipyard in Tampa, Florida, at the beginning of De-
cember, and he sent Respondent’s patrolman, Enrico Esopa,
to interview the crew. Esopa testified that he was sent to
Tampa in late November or early December to interview
members of the crew of the Mormac Sky who were present
on the ship on March 6. When he arrived at the ship on
about December 2, he learned that none of the crewmembers
who were present when Wojcik was fired were aboard the
ship. However, he spoke to crewmembers Ramos and Lam-
bert who had worked with Wojcik at an earlier time and they
told him that Wojcik would give them assignments and then
they wouldn’t see him again for several hours. Esopa then
went to see the captain of the ship who gave gave him a list
of the crewmembers, and when he returned to his office he
attempted to call some of these men. He contacted one—
Houlemard—who told him that Wojcik assigned the work
and was never seen again. Houlemard prepared a statement
for the Respondent saying that on March 6, after Wojcik as-
signed him his work, he did not see Wojcik for the rest of
the evening. Esposa also contacted crewmember Sidney
Zuniga by phone, and he also said that he was pulling lines,
but did not see Wojcik. Esopa met with crewmember Jeffrey
David at Respondent’s hall and David told him the same
story as Zuniga, that he did not see Wojcik while he was
pulling lines on March 6. Esopa also met crewmember Roch
at Respondent’s hall. Roch reported that after they completed
pulling the lines on March 6, they stood around the paint
locker for about 25 minutes looking for Wojcik. They met
the chief officer, who was also looking for him.
Prior to his employment with Respondent, Esopa was em-
ployed as a seaman and as a bosun for 3 years. He had also
been employed on the Mormac Sun and the Mormac Sky, in
1984. He testified that in his experience, a spray gun should
be cleaned ‘‘right away,’’ because the paint dries within 20
minutes of its application. Additionally, a spray gun should
not be cleaned while the crew is pulling lines, ‘‘because it’s
an all hands operation to pull lines. That requires the entire
deck department.’’ He testified that after his investigation: ‘‘I
kept wondering why he was cleaning a spray gun when the
rest of the crew was pulling lines up. He should have been
with the rest of the crew pulling lines.’’ After obtaining
statements from the above named crewmembers, Esopa and
LaForgia forwarded this information to Attorney Kalban for
final decision. However, prior to doing so, LaForgia and
Esopa discussed the matter and each determined that
Wojcik’s grievance had no merit.
By letter dated February 14, 1992, Attorney Kalban noti-
fied Wojcik that Respondent ‘‘has now completed its exten-
sive investigation of your complaint regarding your discharge
. . . not merit being processed any further.’’ The letter also
states that Respondent contacted crewmembers on duty on
March 6 and each one stated that Wojcik was not seen after
directing the crew on what to do, and that the Respondent
was unable to locate any crewmember who saw him on deck
during that period. The letter concludes: ‘‘Under these cir-
cumstances, the Union has concluded that your grievance
lacks merit to be brought to arbitration even assuming that
you had filed it timely.’’
IV. ANALYSIS
It is by now well settled that a union owes a duty of fair
representation to all employees in bargaining units that it
represents, and that duty is breached, and the law is violated,
when the union engages in conduct that is ‘‘arbitrary, dis-
criminatory or in bad faith.’’ Vaca v. Sipes, 386 U.S. 171,
190 (1967). It is often difficult, however, to determine
whether a union’s actions or inactions crossed the lines from
permissible to impermissible. It is clear, though, that a viola-
tion occurs when the union’s actions or inactions are caused
by the individual’s intraunion activities. It is also clear that
in order to establish a violation in duty of fair representation
cases such as the instant matter, the General Counsel must
establish more than ‘‘mere negligence’’ or poor judgment in
the union’s handling of the grievance. Rainey Security Agen-
cy, 274 NLRB 269 (1985). ‘‘Something more is required.’’
Diversified Contract Services, 292 NLRB 603, 605 (1989).
But, as the Board stated in Office Employees Local 2, 268
NLRB 1353, 1355 (1984): ‘‘Exactly when union conduct
constitutes ‘something more than mere negligence’ is not
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Although the evidence establishes that the destinations of the
Company’s tramp tankers such as the Mormac Sky are difficult to
anticipate, Respondent produced no evidence that prior to December
it attempted to locate any of the crewmembers who were no longer
on the ship. Respondent had, or could easily have obtained, the
names of the crewmembers present on March 6, and clearly had
their addresses as most, if not all, were members of Respondent.
Esopa’s subsequent investigation established that this would have
been fruitful.
susceptible to precise definition.’’ In Diversified, supra, the
Board found no violation even though the union’s handling
of the grievance was ‘‘far from model union grievance han-
dling’’ and was ‘‘possible mismanagement on the union’s
part.’’
I find that General Counsel has established that Respond-
ent’s actions (or rather inaction) toward Wojcik’s attempt to
file a grievance was more than mere negligence. Although
the cases establish that this is a difficult burden to establish,
I cannot envision a more convincing case for a violation,
other than one involving the more obvious kind of violation,
one caused by discrimination for a member’s intraunion ac-
tivity. Wojcik called Leit on March 12 and asked what he
could do about his discharge 5 days earlier and Leit told him
that he would have to come to the Respondent’s office in
New York to file a grievance, even though Wojcik told him
that he had just been released from a hospital, was under a
doctor’s care, and was not permitted to travel. Respondent
never explained why they could not mail Wojcik a grievance
form that he could return by mail. Instead, they did nothing.
Wojcik called Leit again 6 days later and asked if anything
had been done with his attempt to file a grievance; nothing
had been done, but Leit said that he would take care of the
matter as soon as he possibly could. Wojcik came to New
York on May 21 and met with Leit. He gave him the letter
from his doctor stating his travel restrictions. He asked if
anything was done on his grievance and was told that noth-
ing had been done. Leit also gave him a grievance form
which he filled out and returned to Leit.
Wojcik returned to Respondent’s hall on May 30 and
asked LaForgia if his grievance had been processed. He
knew nothing about it and asked Leit if he had done any-
thing with the grievance, and Leit said that he had not.
LaForgia read the grievance and told him that it was improp-
erly filled out because he did not properly state the reason
for his discharge and he gave Wojcik a new form to prepare
another grievance. Within a few days, Wojcik prepared a
new grievance which he mailed to the Respondent; they re-
ceived it on June 7. Having heard nothing from Respondent,
Wojcik called LaForgia on July 9 and asked if anything had
been done on his grievance and was told that nothing had
been done, but he asked for another week to attempt to
straighten out the situation. Having again not heard from the
Respondent, Wojcik wrote a letter to Respondent, dated July
22, requesting to be informed of the outcome of his griev-
ance. Again, he received no response. The unfair labor prac-
tice charge was filed 2 days later. The only response he ever
received from Respondent was the February 14, 1992 letter
from counsel for Respondent that his grievance lacked merit.
This was 11 months after he first contacted Leit about his
grievance.
Respondent defends that after Wojcik rewrote his griev-
ance in the allegedly proper manner, LaForgia wrote to
Taponga on June 11 requesting information on Wojcik’s dis-
charge, and called him on two subsequent occasions on the
subject, but never received any of this information from the
Company. Taponga denies ever receiving the letter or tele-
phone calls from LaForgia. I would credit the testimony of
Taponga over that of LaForgia. Taponga had nothing to gain
by appearing at this hearing and testifying as he did. In fact,
the Union represents his employees and he has to continue
dealing with LaForgia and other representatives of Respond-
ent. In addition, his testimony is more believable than that
of LaForgia. If LaForgia had written to him and called him
twice (as LaForgia testified) why would Taponga not re-
spond? He could simply have said that he would not accept
the grievance because it was untimely. I therefore credit
Taponga and find that LaForgia never sent the June 11 letter
and never called him about Wojcik’s grievance.
Respondent therefore did absolutely nothing regarding
Wojcik’s grievance until December. That was after three
telephone calls to Respondent, two visits to Respondent’s
hall, and two letters to Respondent. Additionally, Respond-
ent’s only response to Wojcik’s grievance did not come until
2 months after the complaint in this matter issued.6 General
Counsel has a difficult burden in DFR cases such as the in-
stant matter. He must show something more than mere neg-
ligence, mismanagement, or sloppy grievance handling.
When a union has done absolutely nothing on a grievance for
almost 9 months, although requested to do so on numerous
occasions, and finally acts 2 months after complaint has
issued, General Counsel has satisfied this burden.
Respondent defends that it conducted a good-faith inves-
tigation of Wojcik’s grievance in December and determined
that the evidence did not support his position. It appears to
me, however, that the investigation was a half-hearted one
that did not adequately investigate the grievance. Esopa did,
eventually, speak to four crewmembers of the tanker who
were present on March 6. But each said that while they were
on the deck after pulling the lines they did not see Wojcik.
This does not conflict with Wojcik’s testimony that because
he spilled the vinyl thinner on his pants and into his shoes
he went to his locker to wash it off. That is not to say that
a union must conduct extensive investigations of every griev-
ance filed. But in the circumstances of this case, where the
Respondent did nothing about Wojcik’s grievance for 9
months, and did not act until 2 months after the complaint
issued, the inescapable conclusion is that the Respondent
conducted this investigation solely to cover itself and defend
itself from the instant complaint. It was too late and not
enough.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(b)(1)(A) of the Act
by failing to represent Francis Wojcik for reasons which are
unfair, arbitrary, invidious, and a breach of the fiduciary duty
owed the employees it represents, by failing to properly con-
sider and process the grievance he filed regarding his dis-
charge.
949MARITIME UNION DISTRICT 1 (MORMAC MARINE TRANSPORT)
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
8 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. As Respondent elected to
litigate the merits of the grievance at a subsequent supple-
mental hearing, pursuant to Mack-Wayne II, supra, no finding
will be made on that subject at this time.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Unlicensed Division, District No. 1–
MEBA/NMU, AFL–CIO, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Failing and refusing to represent employees in bargain-
ing units which it represents for reasons that are arbitrary, in-
vidious, and unfair.
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its offices, meeting places, and other facilities
copies of the attached notice marked ‘‘Appendix.’’8 Copies
of the notice, on forms provided by the Regional Director for
Region 34, after being signed by Respondent’s authorized
representative, shall be posted by Respondent immediately on
receipt and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that a supplemental hearing be
held at which time the sole issue will be the merits of
Wojcik’s grievance.