Oil Workers Local 3-495 (Hercules, Inc.)

National Labor Relations Board - Board Decisions

Jul 15, 1994

314 N.L.R.B. 385 (N.L.R.B. 1994)

385
314 NLRB No. 71
OIL WORKERS LOCAL 3-495 (HERCULES, INC.)
1 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.
2 In the remedy section of his decision, the judge recommended
that backpay be computed as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950). Because any backpay that may be due employees
Spangler, Hill, Fritz, and Anderson results from the Respondent’s
unlawful failure to file work-schedule change grievances on their be-
half and does not involve cessation of employment status or interim
earnings, use of the Woolworth formula is unwarranted. The appro-
priate formula to be applied is the one set forth in Ogle Protection
Service, 183 NLRB 682, 683 (1970), enfd. 444 F.2d 502 (6th Cir.
1971). The remedy is so modified.
Oil, Chemical and Atomic Workers International
Union, Local 3-495, AFL–CIO (Hercules, Inc.)
and Benjamin Spangler. Case 11–CB–2225
July 15, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On June 29, 1993, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Re-
spondent Union filed exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
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,
findings,1 and conclusions as modified and to adopt
the recommended Order as modified.2
We agree with the judge that statements made by
Union Steward Doyle violated Section 8(b)(1)(A) of
the Act because they conveyed a policy of preferential
treatment for union members. In addition, we agree
with the judge that the General Counsel demonstrated
that Doyle, as a union agent, acted unlawfully in fail-
ing to file grievances for Spangler, Hill, Fritz, and An-
derson. We reverse, however, the judge’s finding that
Doyle’s statements and his failure to file the griev-
ances at issue support the conclusion that the Respond-
ent established and maintained an overall policy of un-
equal representation of nonmembers.
1. The Respondent has excepted to the judge’s find-
ing that it violated the Act by failing to file grievances
on behalf of Fritz and Anderson. Fritz and Anderson
were on Doyle’s original crew. The Respondent con-
tends that there is no evidence that Fritz and Anderson
were treated disparately because, according to the Re-
spondent, Doyle did not file grievances on behalf of
any employee on his original crew—including union
members. We find no merit in the Respondent’s excep-
tion. The judge credited Fritz’ and Anderson’s testi-
mony that Doyle stated that he was filing grievances
only on behalf of union members. Doyle’s statement
establishes a prima facie case of discriminatory treat-
ment under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982).
Pursuant to Wright Line, the burden then shifts to
the Respondent to rebut the General Counsel’s prima
facie case. Although the Respondent asserts that no
grievances were filed on behalf of Doyle’s original
crew, the Respondent did not proffer any evidence to
support this assertion; indeed, the record does not even
reflect which employees were on Doyle’s original
crew. In addition, and contrary to the Respondent’s
further assertion that Doyle did not believe that anyone
on his original crew was affected by the Company’s
change in work hours, the General Counsel’s Exhibit
5 shows that Doyle himself signed a grievance filed on
February 18, 1992, prior to being assigned to represent
former Union Steward Bradley’s crew. Finally, we
note that after Doyle was assigned to Bradley’s former
crew, Fritz and Anderson were similarly situated to
Spangler and Hill because the record shows that Doyle
continued to represent his original crew. In these cir-
cumstances, the Respondent’s bare assertions are not
sufficient to rebut the General Counsel’s prima facie
case. Accordingly, we agree with the judge that the
Respondent violated Section 8(b)(1)(A) of the Act by
failing to file grievances on behalf of Fritz and Ander-
son.
2. We do, however, find merit in the Respondent’s
exception to the judge’s finding that the Respondent
established and maintained a policy that nonmembers
would not be equally treated. The judge found that the
General Counsel made out a prima facie case that the
Respondent had established and maintained such a pol-
icy based on Doyle’s unlawful statements and the fact
that Doyle solicited grievances only from union mem-
bers. The judge found that the Respondent failed to
rebut the General Counsel’s prima facie case. We dis-
agree.
The record reflects that the Respondent has rep-
resented nonmembers, including nonmembers who
were affected by the Company’s change in starting
times. In addition, we note that the record does not
show that any of the other approximately 30 union
stewards in the maintenance department refused to file
grievances on behalf of nonmembers or that the Re-
spondent actually failed to represent any other
nonmembers. Nor are there other claims that
nonmembers have been unequally represented. For
these reasons, we find that the record does not support
the judge’s finding that the Respondent established and
maintained a policy of refusing to represent
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are 1992 unless I specify otherwise.
2 It was originally charged that the Union also failed to file griev-
ances for James Elliot and Sam Carpenter; however, counsel for the
General Counsel’s unopposed motion at trial to delete those individ-
uals from the complaint was granted.
3 Spangler’s charge was filed on November 16, and amended on
December 28.
4 The complaint issued on December 29.
nonmembers or of representing nonmembers and mem-
bers unequally. See Letter Carriers Local 223 (Postal
Service), 311 NLRB 541 (1993). Accordingly, we shall
dismiss this portion of the complaint.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Oil,
Chemical and Atomic Workers International Union,
Local 3-495, AFL–CIO, its officers, agents, and rep-
resentatives, shall take the action set forth in the Order
as modified.
1. Delete paragraph 1(c) and reletter the subsequent
paragraph.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations not found.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected activities.
WE WILL NOT communicate a policy to employees
that we will give preferential treatment to union mem-
bers.
WE WILL NOT fail to file any grievance for any em-
ployee because the employee is not a member of the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make Benjamin Spangler, Michael Hill,
Gerald Fritz, and James Anderson whole for any loss
of compensation they may have suffered as a result of
our failure to file work-schedule change grievances on
their behalf commencing in May 1992.
OIL, CHEMICAL, AND ATOMIC WORKERS
INTERNATIONAL UNION, LOCAL 3-495,
AFL–CIO
Donald R. Gattalaro, Esq., for the General Counsel.
Gregory Mooney, Esq., of Lakewood, Colorado, for the
Company.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. There are
two overall issues presented in this case. The first is whether
Oil, Chemical and Atomic Workers International Union
Local 3-495 (Union) Shop Steward Philip Doyle commu-
nicated to certain Hercules, Inc. (Company) employees dur-
ing May 19921, that the Union would give preferential treat-
ment to union members and whether the Union, through
Doyle, established and maintained a policy that nonunion
members would not be equally represented by the Union.
The second overall issue relates to whether the Union failed,
in May and thereafter, to file grievances for Benjamin
Spangler (Spangler), Michael Hill (Hill), Gerald Fritz (Fritz),
and James Anderson (Anderson)2 because they were not
members of the Union.
The Union denies having violated the Act in any manner.
Trial of this case was conducted before me in Blacksburg,
Virginia, on April 20, 1993, based on Spangler’s charge3 and
the complaint and notice of hearing (complaint)4 issued by
the Regional Director for Region 11 of the National Labor
Relations Board (Board). Counsel for the General Counsel
(Government) and Union filed briefs which have been care-
fully considered.
On the basis of the entire record, and my observation of
the demeanor of the seven witnesses who testified, I will, as
hereinafter more fully explained, conclude the Union violated
the Act essentially as alleged in the complaint.
FINDINGS OF FACT
I. JURISDICTION
The Company is a Delaware corporation with a facility lo-
cated at Radford, Virginia, where it is engaged in the manu-
facture of ammunition and propellants. During the 12 months
preceding issuance of the complaint herein, a representative
period, the Company received at its Radford, Virginia, facil-
ity goods and materials valued in excess of $50,000 directly
from points outside the State of Virginia. During the same
representative period, the Company manufactured, sold, and
shipped from its Radford, Virginia facility products valued in
387OIL WORKERS LOCAL 3-495 (HERCULES, INC.)
5 In a letter accompanying the charge, the Union requested its
charge not be Collyerized.
6 Not all maintenance department employees were adversely af-
fected. For example, the employees that worked exclusively in the
shop areas were not impacted under the unilateral changes.
excess of $50,000 directly to points outside the State of Vir-
ginia. The complaint alleges, the parties admit, the evidence
establishes, and I find, the Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the National Labor Relations Act (Act).
II. THE LABOR ORGANIZATION
The complaint alleges, the parties admit, the evidence es-
tablishes, and I find, the Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE FACTS
The Union was designated as the exclusive collective-bar-
gaining representative of certain (production and mainte-
nance) employees of the Company and has, at least since
1955, been so recognized by the Company. This recognition
has been embodied in successive collective-bargaining agree-
ments, the most recent of which is effective by its terms
from October 7, 1989, until October 7, 1993. The parties’
collective-bargaining agreement at article V sets forth a
multistep ‘‘Grievance Procedure’’ that culminates, if nec-
essary, in final and binding arbitration. The collective-bar-
gaining agreement reflects 8 hours shall constitute a workday
and 40 hours a workweek. Time worked in excess of 8 hours
in any workday or 40 hours in any workweek is considered
overtime.
For an extended time prior to late January, the Company’s
maintenance employees worked an 8 a.m. until 4:30 p.m.
work shift. At times prior to January, the maintenance em-
ployees reported to their respective shop areas at 8 a.m.
where they were then given their daily work assignments.
Those maintenance employees that drew assignments away
from the shop’s areas were transported by company-provided
vehicles to their work locations. The maintenance employees
would work their assignments until 4:15 p.m. at which time
they would be transported by company-provided vehicles
back to the maintenance shop’s areas in time to clean up and
complete the workday by 4:30 p.m. Prior to late January, any
maintenance employee given a work assignment prior to 8
a.m. was paid overtime at 1-1/2 times premium pay in 15-
minute increments. Prior to late January, no maintenance em-
ployee was considered tardy or docked pay until after 8 a.m.
In late January, the Company unilaterally commenced re-
quiring all maintenance employees to be at their maintenance
shop areas in time to receive their work assignments and to
physically be in company-provided vehicles ready for travel
to their jobsite locations not later than 7:45 a.m. without pre-
mium or overtime pay for any time prior to 8 a.m. Mainte-
nance employees that did not report by 7:45 a.m. were con-
sidered tardy and penalized in accordance with the Com-
pany’s absenteeism policy.
On July 1, the Union filed an unfair labor practice charge
against the Company (Case 11–CA–15057) in which it was
contended the Company, by unilaterally changing the nego-
tiated hours of work for certain of its maintenance employ-
ees, had violated the Act.5 After an investigation, Region 11
of the Board, on behalf of the General Counsel of the Board,
issued a complaint (Case 11–CA–15057) charging the Com-
pany with violating the Act by unilaterally changing the
work hours of certain of its maintenance employees. In mid-
August, the Union advised the Regional Director for Region
11 of the Board that it had ‘‘reached an agreement’’ with the
Company which ‘‘satisfactorily’’ addressed and resolved all
issues related to the complaint in Case 11–CA–15057 and re-
quested to withdraw the charge in that case. The settlement
the parties arrived at follows:
In the interest of harmonious industrial relations, the
Company and Union agree to the following:
1. Maintenance Employees shall report to their re-
spective shops at the start of their regularly scheduled
shifts (revert back to the practice in effect prior to Janu-
ary 27, 1992).
In acceptance of this agreement, the Union agrees to
withdraw NLRB Case No. 11–CA–15057.
2. Maintenance Employees who are not assigned to
the shop area shall report to their respective shops prior
to the end of their regularly scheduled shifts. Those em-
ployees that are deemed by the Company to have paid
shower time may be in the shop no earlier than one-
half hour prior to the end of the shift. Those employees
that do not receive paid shower time may be in the
shop no earlier than fifteen minutes prior to the end of
the shift. For example, an E shift Carpenter (CARA)
that is determined to have paid shower time would re-
port to the shop at 8:00 a.m. start of shift, and again
at 4:00 p.m., prior to the end of the shift. An E shift
Carpenter that does not receive paid shower time would
report to the shop at 8:00 a.m. start of shift and again
at 4:15 p.m., prior to the end of the shift.
3. Grievances filed on reporting to work early and
clean up and travel time will be settled by paying the
aggrieved employee(s) straight time pay for the time in
question.
It is the intent of the Company to abide by the provi-
sions of the Labor-Management Agreement.
Date Date
/s/ Kenneth Thompson /s/ Charles R. Lee
President Director Human Resources
O.C.A.W., Local 3-495 Hercules Incorporated-RAAP
Local Union President Kenneth Thompson (President
Thompson) estimated approximately 192 different individuals
filed grievances in connection with the above overtime dis-
pute. He estimated there are 600 to 700 employees at the
Company.6 President Thompson testified, without contradic-
tion, that there is no provision for class action type griev-
ances under the contractual grievance procedure. President
Thompson explained that any employee affected or poten-
tially affected by the overtime dispute (or any other dispute)
had to file or sign a grievance in order to have the matter
addressed. Thompson further explained that if a grievance
was intended to cover more than one employee, each em-
ployee seeking to be covered by the grievance had to sign
an attachment to the grievance. President Thompson also tes-
tified, without contradiction, that under the grievance proce-
dure there is no provision for a continuing grievance. He ex-
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 President Thompson testified that step 2 of the grievance proce-
dure commences when a grievance is reduced to writing.
8 Spangler said his name was not in the book so he assumed he
could not sign it.
9 Anderson testified he is not a member of the Union herein but
rather belongs to IBEW, Local 637 (Roanoke, Virginia).
10 Fritz said he is not a member of the Union herein but rather
is a member of an IBEW local.
11 Fritz said he was aware the paper in question was a grievance
but was unaware of specifically what grievance.
12 Hill stated he at one time had been a member of the Union but
not recently.
plained that in the situation where a grievance is a continuing
one, a new grievance had to be filed every 15 days, other-
wise, it would be understood it was not continuing.
A review of the mechanics of filing a grievance pursuant
to the instant collective-bargaining agreement to include who
may file and how a grievance is thereafter processed is help-
ful at this point.
Any grieved employee may discuss the same with his/her
immediate salaried supervisor with or without union rep-
resentation. If an employee having a grievance is not satis-
fied with management’s step 1 response, the employee may
obtain a grievance form from any salaried supervisor and re-
duce the grievance to writing. The Union is required to par-
ticipate at step 2 of the grievance procedure even though the
individual filing the grievance may also continue to partici-
pate.7
President Thompson testified that all union stewards are
instructed to treat union and nonunion employees alike and
if a nonunion employee wished to file a grievance, the stew-
ards ‘‘are to file that grievance.’’ President Thompson said
that while an employee can initiate his/her own written griev-
ance, that procedure is not ‘‘normally’’ followed. President
Thompson acknowledged, with respect to the grievances at
issue herein, that ‘‘no individual employee’’ filed any such
grievance but rather all were filed by the Union.
Spangler testified that at the time the Company initiated
the unilateral change in working hours the union steward for
his assigned crew was David Bradley. Spangler testified that
shortly after the change Bradley announced to his assigned
work crew that anyone interested in signing a paper (griev-
ance) on the work schedule changes should meet with him
in the shop. Spangler said he and several other maintenance
employees signed the grievance Bradley had prepared. The
first such grievance that Union Steward Bradley sought to
have interested employees sign was initiated on or about
February 5, followed by additional grievances on February
18, March 9, and April 9. Spangler testified union steward
Bradley ‘‘always encouraged us to sign’’ the grievances say-
ing ‘‘it would help his cause.’’
According to Spangler, Bradley left the Company in
‘‘early summer.’’ After Bradley left, Philip Doyle was as-
signed as Spangler’s work crew’s union steward. Spangler
stated his first encounter with Union Steward Doyle took
place shortly after Bradley departed the Company.
Spangler testified Doyle spoke to the work crew about the
overtime related grievances. According to Spangler, Doyle
brought a ‘‘notebook’’ with him and as the work crew was
loading a company-provided vehicle for transportation to
their assigned jobsites Doyle told the employees, as he hand-
ed the notebook to one of them already on the truck, that
‘‘he had these grievances or papers . . . fixed up in neat
order.’’ Spangler observed the papers had been ‘‘type-
written’’ and stated one employee asked Doyle what hap-
pened if your name was not in the book. According to
Spangler, Doyle replied, ‘‘if your name’s not in there, you
can’t sign it.’’8 Spangler testified that as Union Steward
Doyle left the area he (Doyle) stated:
[H]e was going to do this thing different than what
[Union Steward] Bradley had done before, that he
wasn’t going to let any free riders sign these papers or
non-union members.
Spangler explained that Union Steward Doyle solicited cer-
tain employees, identified as being union members, to sign
the grievance papers. Spangler testified:
[Union Steward Doyle] would bring the notebook and
tell them to put down how many hours they had
worked in that particular period of time, that they were
due for overtime the 15 minutes before or after and
they would write down how many hours they had accu-
mulated during that 10 to 15 days or whatever the time
lapse had been.
Spangler testified that when the maintenance employees were
paid as a result of the settlement of the overtime dispute, he
did not receive the amount he felt he was entitled to.
Spangler complained to President Thompson who told him if
he had not signed the grievances, he would not be paid.
Spangler told President Thompson he ‘‘didn’t get a chance
to sign these grievances.’’
Anderson testified that in 1992, his assigned union steward
was Doyle.9 Anderson stated that after the Company changed
the maintenance employees’ work hours, union steward
Doyle brought a black book or binder with him one morning
‘‘approximately in the winter or around the first of spring’’
and told the work crew members they ‘‘couldn’t sign this
book’’ unless they were ‘‘a union member.’’ Anderson,
though uncertain, thought Spangler and Fritz were among
those present at the time. Anderson said he observed Union
Steward Doyle on approximately three separate occasions
thereafter talking with groups of union members that he had
pulled aside. Anderson said that on each occasion, Doyle
opened his notebook as he talked with them.
Former company electrician Fritz10 testified that although
Doyle was his assigned union steward, he never asked him
if he could sign any grievance related to the overtime situa-
tion but added he overheard Doyle talking with employees
about the overtime grievances. Fritz said the conversation he
overheard took place in March or April as his work crew
was on a truck waiting to be transported to their work sites
for the day. Fritz remembered Anderson and at least one
other employee being present. Fritz said an employee signed
the grievance sheet11 and asked Doyle about other employees
signing it. According to Fritz, Doyle responded ‘‘it was for
paying members only’’ and made reference to ‘‘non-union
members not being able to sign it.’’
Employee Hill12 testified that when the Company unilater-
ally changed the work schedules in January, his union stew-
ard, Bradley, prepared and encouraged him to sign griev-
389OIL WORKERS LOCAL 3-495 (HERCULES, INC.)
13 Hill said he signed all the grievances Bradley prepared on the
work schedule changes.
14 Hill stated Custard closed the ‘‘book’’ when he passed it by him
(Hill).
15 Grievances filed by Doyle dated June 2, 9, 16, 23, 30; July 17,
28; and August 4, were received in evidence.
16 Doyle said he put the standard language into his computer so
that each time he resubmitted a grievance he would already have
correct language for the grievance.
17 On cross-examination, Doyle acknowledged that certain employ-
ees listed on the grievances he prepared, namely, Alley, Altizer, Col-
lins, Manuel, Shepeard, St. Clair, and Wright did not ask that he in-
clude their names thereon.
18 Doyle acknowledged that Hill and Spangler worked on the same
crew as he did, however, he denied he had as much reason to sus-
pect they were affected as he did any of the others.
19 Doyle speculated that some employee may have asked where he
obtained the list of names he included on the first grievance and he
speculated he may have stated the list came from the Union.
20 Doyle testified he thereafter added the handwritten names to his
computer-generated list. On rebuttal, Spangler testified, without con-
tradiction, that Howorth, who had written in his name on one of the
grievances, was a close friend of Union Steward Doyle and that he
saw Doyle solicit Howorth to sign the grievances during safety
meetings.
ances related thereto.13 Hill testified that on or after May 15,
Doyle became his union steward. Hill said that around late
May or early June, Doyle brought a ‘‘black notebook’’ with
him to the work crew loading area and passed it around for
employees to sign papers therein. According to Hill, em-
ployee Tom Custard asked what the ‘‘book’’ was about and
Doyle told him it concerned the employees ‘‘starting [work]
early and quitting [work] late.’’ Custard commented that not
all the employees were on the list to which Doyle replied
‘‘this is for paying members.’’ Hill said Custard signed the
paper and passed the book to another union member to
sign.14
Union Steward Doyle testified that during his 6 years as
a steward, he had always been told by various union officials
to treat and represent union and nonunion members equally.
Doyle said he was transferred by company supervision to
the crew that Union Steward Bradley had previously worked
on. Doyle said that after replacing Bradley, he filed a series
of grievances for the employees on that crew concerning the
Company’s unilaterally changing scheduled worktimes.15
Doyle testified that in preparing the first of the grievances
he filed, he obtained standard language prepared by Union
President Thompson from fellow steward Michael Melvin.
Doyle said that after obtaining a grievance form from his su-
pervisor, he prepared a pretyped grievance on his home com-
puter using the union-drafted standard language.16 Con-
cerning the names included on his first and subsequently sub-
mitted grievances, Doyle testified:
I took a list of names of the people that I knew were
affected, you know, that had either approached me17 or
that I directly knew were affected18 by this change and
I [typed the names] . . . on a sheet19 and I took that
sheet the very next day or . . . couple of days . . .
[and] . . . passed it out on the truck in the morning to
be signed by all the people that were affected . . .
Doyle testified that certain employees asked to be included
on the grievances after he had typed them. He said he al-
lowed such individuals to write their names onto the griev-
ances.20
Doyle testified he passed the grievances around to be
signed at each opportunity he had such as when the employ-
ees got together for safety meetings. Doyle testified employ-
ees Spangler, Hill, Fritz, and Anderson never at any time
asked to be included in any of the grievances and he stated
he never at any time told them they could not sign the var-
ious grievances. Doyle denied ever telling employees the
Union would give preferential treatment to its members in
connection with the overtime issue. Doyle likewise denied
ever establishing or communicating a policy that nonunion
members would not be equally represented by the Union.
IV. DISCUSSION, ANALYSIS, AND CONCLUSIONS
The key to decision in this case is to determine if Union
Steward Doyle made certain comments attributed to him by
the Government’s witnesses. If it is concluded he made such
comments, it is necessary to determine if such comments
constitute violations of the Act as alleged in the complaint.
Further, it is necessary to ascertain if Doyle’s comments,
even if unlawful, are time barred by the limitations period
outlined in the Statute.
First, I credit Spangler’s uncontradicted testimony that
Union Steward Bradley actively solicited employees, includ-
ing himself, to sign the grievances he prepared on the work
schedule changes that give rise to the issues herein. It is un-
disputed that after Bradley left his employment with the
Company, Union Steward Doyle assumed Bradley’s union
duties related to Spangler’s work crew. It is likewise undis-
puted that when Doyle commenced to file grievances he
pretyped the grievances including the names set forth there-
on. Doyle only included union members’ names on the first
grievance he filed. It is clear Spangler’s name was not
among those pretyped on the grievances Doyle prepared. I
specifically credit Spangler’s testimony that when asked,
Union Steward Doyle explained that if an employee’s name
did not appear on the grievances, that employee could not
sign the grievances that he (Doyle) was going to do things
differently than former Union Steward Bradley had done in
that he (Doyle) wasn’t going to tolerate any ‘‘free riders’’ or
‘‘nonunion members.’’ Fritz credibly testified that after
Union Steward Doyle presented grievance forms to one em-
ployee for signature that the employee asked Doyle about
other employees signing the papers to which Doyle re-
sponded ‘‘it was for paying members only’’ and ‘‘nonunion
members would not be able to do so.’’ Hill credibly testified
that when Union Steward Doyle brought his ‘‘black note-
book’’ to the work crew and passed it around for signatures
(concerning employees starting work early and quitting work
late) that employee Custard asked Doyle about certain em-
ployees not being on the list and that Doyle responded the
list was ‘‘for paying members.’’ I credit Anderson’s testi-
mony that Union Steward Doyle told the work crew that they
‘‘couldn’t sign this book’’ containing the grievance forms
unless they were ‘‘union member[s].’’
I credit Spangler’s testimony that Union Steward Doyle
specifically solicited certain union members to sign the
grievance papers he had prepared. Anderson credibly testified
that he observed Doyle on approximately three separate oc-
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Sec. 10(b) of the Act, in pertinent parts, states ‘‘no complaint
shall issue based upon any unfair labor practice occurring more than
6 months prior to the filing of the charge with the Board.’’
22 I am persuaded Anderson’s recall in placing the date as having
been ‘‘in the winter or around the first of springtime approximately’’
was too uncertain to be relied upon. I likewise find unreliable Fritz’
recall that the date was ‘‘about March or April.’’
23 I reject the Union’s argument that there is no showing that
Doyle’s June 2 grievance was the first one he filed. If an earlier
grievance exists that Doyle filed, the Union, which would have ac-
cess to any such grievance, failed to produce such at trial.
24 That Bradley’s actions set the standard against which the
Union’s actions must be viewed and evaluated is borne out by cer-
tain actions of Union Representative Jeffries. Jeffries, on behalf of
the Union, filed what amounted to a class action unfair labor prac-
tice charge against the Company. Jeffries in his ‘‘facts’’ letter ac-
companying his charge against the Company in Case 11–CA–15057
spoke in terms of ‘‘all maintenance employees’’ being affected.
Thereafter when the Company and Union reached a settlement
agreement covering the unilateral changes set forth in Case 11–CA–
15057, Jeffries wrote the Regional Director of Region 11 urging the
director to accept the Union’s withdrawal of the charge in Case 11–
CA–15057 because of the parties’ settlement agreement that ‘‘satis-
factorily’’ addressed and resolved ‘‘all’’ pertinent portions of the
unilateral change allegations. The settlement agreement reflects all
grievances filed ‘‘on reporting to work early and clean up and travel
time will be settled by paying the aggrieved employee(s).’’ Thus, it
is clear that Jeffries believed when he represented to the Regional
Director that all pertinent portions of the unfair labor practice allega-
tions had been resolved by making all affected employees whole that
the stewards had, as Bradley had done, solicited all affected employ-
ees to sign the changed work hour grievances.
25 In making this conclusion, I am mindful of the fact that there
are no provisions for class action grievances or continuing griev-
ances between the parties in their collective-bargaining agreement.
casions take groups of union members aside, open his note-
book, and speak with them.
It is clear from the above-credited statements that the
Union, through its agent and steward Doyle, communicated
a policy to employees the union would give preferential
treatment to its members. Such violates Section 8(b)(1)(A) of
the Act, and I so find.
The above finding does not, however, dispose of the issue
of whether the above demonstrates the Union established and
maintained a policy that nonunion members would not be
equally represented by the Union. I am persuaded it does.
Not only did Union Steward Doyle tell employees that non-
members could not sign the grievances he carried around in
his notebook because the Union was precluding free riders
and nonunion members, he actively sought to have union
members sign the grievance forms. Spangler, for example,
testified that Union Steward Doyle (with his notebook con-
taining grievance forms) solicited those he identified as
union members to sign the papers. Anderson testified that
Doyle pulled union members aside on at least three separate
occasions with his open ‘‘notebook’’ in hand and talked with
the employees, albeit out of Anderson’s range of hearing. By
the above, the Government established a prima facie case
that the Union, by Doyle’s actions and comments established
and maintained an unlawful policy against representing non-
members equally. I find the Union has failed to adequately
rebut the prima facie case by evidence that would dem-
onstrate it represents nonmembers equally. It simply is not
enough for the Union to state it has always had, and con-
tinues to have, a policy of nondiscrimination against non-
members.
In light of the above, I conclude and find the Union has
established and maintained, in violation of Section 8(b)(1)(A)
of the Act, a policy against representing nonunion members
equally.
The Union argues that even if it is concluded as I have,
Union Steward Doyle made the statements attributed to him
and that the statements would otherwise constitute violations
of the Act, such are time barred by Section 10(b) of the
Act.21
The Union argues, and correctly so, that for the Govern-
ment to prevail on the timeliness issue, it (the Government)
has the burden of establishing the alleged violations occurred
within the time frame allowed by the Act. The Union argues,
and again correctly so, that to be timely, the violations herein
must have occurred on or after May 15.
Although the evidence is somewhat less than crystal clear,
I am persuaded Counsel for the Government met his burden
of establishing the violations fell within the permissible time
frame to be validly pursued. Spangler, whose testimony I
credit, placed the date of Union Steward Doyle’s comments
and actions as being in ‘‘early summer.’’ Hill placed the date
as ‘‘last part of May or early June.’’ These two witnesses’
testimony is supported by other record evidence.22 The first
grievance of record that Union Steward Doyle filed is dated
June 2.23 Based on the above, I am persuaded the issues
herein are timely and not barred by Section 10(b) of the Act.
Did the Union fail to file grievances on behalf of
Spangler, Hill, Fritz, and Anderson as alleged in the com-
plaint because they were not members of the Union? If so,
was the Union’s failure based upon unfair, arbitrary, and in-
vidious reasons and/or in breach of the fiduciary duty it
owed to the employees it represents.
I am persuaded the Union’s actions, as well as inactions,
related to the four employees in question violated the Act as
alleged in the complaint. First, it is clear the Union through
Steward Bradley vigorously solicited employees to sign
grievances related to the Company’s unilateral change in
work hours for the maintenance employees. There is no
showing that Union Steward Bradley was acting outside the
knowledge of, or without direction from, the Union in solic-
iting employees to sign the grievances. There is no showing
that any stewards (other than Doyle) acted or conducted
themselves in a manner inconsistent with the actions of
Bradley. Thus, it appears in agreement with counsel for the
Government that Bradley’s actions established the standard
against which the Union’s subsequent actions must be
viewed.24 It is clear Union Steward Bradley acted pursuant
to a plan designed and established by the Union when he so-
licited employees to join in the grievances25 related to the
unilateral changes in working hours.
It is clear Union Steward Doyle changed the Union’s es-
tablished practice, followed by Bradley. Doyle moved away
from soliciting all employees to sign the grievances at issue
herein. It is clear Doyle changed the Union’s practice be-
cause he wanted to ‘‘do this thing different[ly]’’ and elimi-
nate ‘‘free riders’’ and ‘‘nonunion members’’ from signing
or benefitting from the changed working hours grievances.
Doyle’s assertion that he only pretyped on the grievances the
names of employees he knew were affected by the changes
or that had asked him to do so is not believable in light of
391OIL WORKERS LOCAL 3-495 (HERCULES, INC.)
26 Doyle solicited union members to sign the grievances. Spangler
testified Doyle solicited employees, Manual and Wright, and his tes-
timony that the two were union members is undisputed.
27 It is noted that Doyle allowed three individuals (R. J. Howard,
W. E. Dunhee, and J. A. Ferguson) to write in their names on the
grievances; however, all three were union members.
28 I reject the Union’s contention it owed no duty to Spangler,
Hill, Fritz, and Anderson because they never asked, demanded, sug-
gested, or even hinted that they expected Doyle to file grievances
on their behalf. The four nonmembers in question are not required
to engage in an act of futility in order to protect their rights. Doyle
had made it clear nonmembers would not, as free riders, be allowed
to sign the grievances. I also reject the Union’s contention that the
four employees in question had the wherewithal to remedy the ef-
fects of any failure on the part of the Union to file grievances on
their behalf in that they, as individuals, could have simply filed
grievances by and for themselves. Such actions on the part of the
four employees in question, while permissible, would have been con-
trary to the established practice with respect to the work-hour griev-
ances. President Thompson candidly admitted all grievances filed on
the issues herein were filed by the Union.
29 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621.
30 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.
31 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.’’
certain other record evidence. For example, Doyle only
pretyped union members’ names on the grievances. Doyle
admitted he could only say for sure that two individuals
(Freeland and Johnson) whose names he pretyped on the
grievances had asked him to do so. Doyle’s claim he placed
others on the list based on his ‘‘general knowledge’’ with
‘‘nothing specific’’ that they were affected does not explain
how he could work alongside other employees in question
and not conclude they also were affected. The distinguishing
factor, it appears, is Doyle only solicited26 and/or included27
union members on the grievances.
From all the above, it is clear the Union, through its Stew-
ard Doyle, altered its established practice of soliciting all af-
fected employees to sign the grievances in question and that
the changed practice was for the unfair, arbitrary, and invid-
ious reason of excluding nonunion members from filing or
participating in the overtime grievances.28
CONCLUSIONS OF LAW
1. Hercules, Inc. is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Oil, Chemical and Atomic Workers International Union
Local 3-495 is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing, since on or about May 1992, to file griev-
ances for employees Benjamin Spangler, Michael Hill, Ger-
ald Fritz, and James Anderson because they were not mem-
bers of the Union, the Union breached its duty of fair rep-
resentation in violation of Section 8(b)(1)(A) of the Act.
4. By communicating a policy to employees that the Union
would give preferential treatment to union members and by
establishing and maintaining a policy that nonmembers
would not be equally represented by the Union, the Union
has restrained and coerced employees in the exercise of
rights guaranteed by Section 7 of the Act, thereby violating
Section 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Union violated the Act, I shall rec-
ommend that it be ordered to cease and desist and to take
certain affirmative action designed to effectuate the policies
of the Act.
Specifically, I recommend that the Union make Spangler,
Hill, Fritz, and Anderson whole for any loss of compensation
they may have suffered as a result of its failure to file work
schedule change grievances on their behalf commencing in
May 1992. Pay shall be computed as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest, as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).29 Finally, I recommend the Union be ordered to post
an appropriate notice to members, copies of which are at-
tached as an appendix [omitted from publication] for 60 days
so that members and employees may be apprised of their
rights under the Act and the Union’s obligation to remedy
its unfair labor practices.
On these findings of fact and conclusions of law, and on
the entire record, I issue the following recommended30
ORDER
The Respondent, Oil, Chemical and Atomic Workers Inter-
national Union Local 3-495, AFL–CIO, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Failing to file grievances because the grievants are not
members of the Union.
(b) Communicating a policy to employees that the Union
would give preferential treatment to union members.
(c) Establishing and maintaining a policy that nonunion
members would not be equally represented by the Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Benjamin Spangler, Michael Hill, Gerald Fritz,
and James Anderson whole for any loss of compensation
they may have suffered as a result of the Union’s failure to
file work schedule change grievances on their behalf com-
mencing in May 1992.
(b) Post at its offices copies of the attached notice marked
‘‘Appendix.’’31 Copies of the notice, on forms provided by
the Regional Director for Region 11, after being signed by
the Union’s authorized representative, shall be posted by the
Union immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by the Union to ensure that the no-
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tices are not altered, defaced, or covered by any other mate-
rial.
(c) Mail a copy of the notice to Benjamin Spangler, Mi-
chael Hill, Gerald Fritz, and James Anderson.
(d) Forward to the Regional Director for Region 11 signed
copies of the notice sufficient in number for Hercules, Inc.,
if willing, to post at its Radford, Virginia facility.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Union has taken
to comply.