Port Drum Co.

National Labor Relations Board - Board Decisions

Jan 7, 1970

180 N.L.R.B. 590 (N.L.R.B. 1970)

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Port Drum Company and Charles A. Carver Oil,
Chemical & Atomic Workers International Union,
AFL-CIO Local No. 4-23 and Charles A. Carver.
Case 23-CA-2493 and 23-CB-712
January 7, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On March 20, 1968, the Board issued its Decision
and Order in the above-entitled proceeding ,' finding
that the Respondent Union violated Section
8(b)(1)(A) of the Act by its refusal to take to
arbitration the grievance of Charles Carver based on
his lack of Union membership. The Board , with the
exception of Member Jenkins, further found that the
Respondent Company did not violate Section 8(a)(1)
of the Act . The Board ordered the Respondent
Union to arbitrate Carver ' s grievance but, due to its
finding that the Respondent Company had not
violated Section 8(a)(1), did not include the
Respondent Company in its order to arbitrate. The
Board did , however , retain jurisdiction over the case
in order to scrutinize the conduct of the Respondent
Union in complying with the Order and to assess
any damages suffered by Carver that were not
remedied by its initial Order.2
On August 2, 1968, as appears from papers
subsequently filed, the attorney for the Respondent
Union requested arbitration of the Carver discharge
in a telephone conversation with the Company's
attorney . The Company refused to arbitrate the
grievance of Charles Carver, claiming that the
requirements of the collective -bargaining agreement
involving the arbitration of grievances were not met
and that the Board's Order does not require it to
arbitrate with the Respondent Union.
On October 4, 1968, the General Counsel made a
motion to reopen the proceedings. In his motion, the
General Counsel asked the Board to issue a
Supplemental Order requiring the Employer to
arbitrate , and to provide "for such other and further
relief as it deems to be just and proper under the
circumstances ." The Employer filed an answer to
the General Counsel ' s motion claiming that the
Board 's Order did not compel it to arbitrate; that
the Respondent Union had not made a demand for
arbitration in writing as required by the
1170 NLRB No. 51.
'In this connection , the Board stated.
On the other hand , we are mindful of the Union 's prior conduct
in this matter and of the possibility that Carver may have suffered
irreparable damages because of the Union 's unlawful conduct . Rather
than adopting Section 8 of the Trial Examiner's Recommended Order,
and attempting at this point to anticipate what damages , if any, Carver
may suffer or has suffered by virtue of the Union' s failure to arbitrate
his case , we shall retain jurisdiction in this matter and may , upon timely
motion of the General Counsel or Charging Party , reopen this
proceeding for a determination of this question
collective-bargaining agreement ' s section on
arbitration ; that Carver never indicated that he was
dissatisfied with the termination ; and that the
Board 's Decision did not find it guilty of any unfair
labor practices . Respondent Union has filed no
response to the General Counsel ' s motion. In an
addendum to his motion, the General Counsel has
informed the Board that Charles A. Carver died on
March 21, 1969 and that his estate is assuming his
position in this case . The addendum further asks
that the Board order the Respondent Union to make
Carver ' s estate whole for loss of pay caused by the
Union 's unfair labor practice.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has considered the General Counsel's
motion , the Company ' s answer, and the entire
record in this case, and hereby grants the motion of
the General Counsel to the following extent:
As the Board indicated in its initial Decision,
there appeared , even at that time , the possibility
that the Order then issued would not make Carver
whole for Respondent Union's unlawful refusal to
process his grievance in a timely fashion.
Unfortunately , that possibility has come to pass.
Insofar as the papers before us show, the
Respondent Union has taken no effective steps to
fulfill its obligation of fair representation so as to
remedy its unlawful conduct with respect to Carver.
Despite our original Order , the Union has
undertaken no court proceeding to attempt to
compel the Employer to arbitrate Carver's
grievance ; nor has Respondent Union in any other
manner succeeded in remedying its prior dereliction.
In any event as the General Counsel points out in
the addendum to his motion to reopen , the death of
Carver has removed arbitration as a method
available for adjustment of the dispute.
We are unwilling to leave the Charging Party,
now his estate , without a remedy in these
circumstances . As the Board found in its initial
Decision , it was the Respondent ' s denial of fair
representation at an appropriate time which created
the indeterminate situation concerning Carver's
status . The Trial Examiner found that the
contractual validity of Carver's discharge was open
to serious , unresolved question . Both the equities
and the effective realization of statutory policy
require that the Respondent Union bear the burden
of the ambiguities which it has created by its illegal
act. Consequently, we shall order that Respondent
Union make the estate of Charles A. Carver whole
for any loss of earnings he may have sustained as a
result of his discharge of July 28 , 1966, less his net
earnings during such period, in accordance with the
formula set forth in F . W. Woolworth Co., 90
NLRB 219, with interest of 6 percent per annum on
the amount of such loss, from the time he requested
180 NLRB No. 90
PORT DRUM COMPANY
Respondent Union to present a grievance on his
behalf concerning that discharge until March 21,
1969, the date of his death, or if he had obtained
substantially equivalent employment, to the date of
such employment.
ORDER
We hereby withdraw the Order previously issued
in this proceeding and order as follows:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Union, Oil, Chemical & Atomic Workers
International Union, AFL-CIO, Local No. 4-23, its
officers , agents , and representatives , shall:
1. Cease and desist from:
(a) Discriminating in its representation of any
employee because of his lack of membership in
Respondent Union.
(b) In any like or related manner, restraining or
coercing employees in the exercise of Section 7
rights guaranteed by the National Labor Relations
Act, as amended.
2. Take the following affirmative action which we
find necessary to effectuate the policies of the Act:
(a) Make whole the estate of Charles A. Carver
for any loss of pay he may have suffered by
payment to it of a sum of money equal to that
which Charles A. Carver would normally have
earned from the date Carver made his first request
to Respondent to redress his grievance until the date
of his death, or, if he obtained substantially
equivalent employment, to the date of such
substantially equivalent employment less his net
earnings during the backpay period, together with
interest thereon at a rate of 6 percent per annum.
(b) Post at its offices, meeting halls , and bulletin
boards copies of the attached notice marked
"Appendix."3 Copies of said notice, on forms
provided by the Regional Director for Region 23,
after being duly signed by an authorized
representative of said Union, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to its members are customarily posted.
Reasonable steps shall be taken by said Respondent
to insure that said notices are not altered , defaced,
or covered by any other material.
(c) Mail signed copies of the notice to the
'In the event this Order is enforced by a judgment of the 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 "
591
Regional Director for Region 23, for posting by
Port Drum Company, said Employer being willing,
at all locations where notices to its employees are
customarily posted.
(d) Respondent Union shall notify the Regional
Director for Region 23, in writing, within 10 days
from the date of this Decision and Order, what steps
have been taken to comply herewith.
Insofar as it alleges unfair labor practices on the
part of Respondent Port Drum Company, the
consolidated Complaint is hereby dismissed.4
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
Posted by order of the National Labor Relations Board
an agency of the United States Government
WE WILL NOT discriminate in our representation of
any employee because of his lack of membership in this
Union.
WE WILL NOT in any like or related manner restrain
or coerce any employee in the exercise of Section 7
rights guaranteed him by the National Labor Relations
Act, as amended.
WE WILL make whole the estate of Charles A.
Carver for any loss of pay he may have suffered by
payment to it of a sum of money equal to that which
Charles A. Carver would normally have earned from
the date Carver made his first request to us to redress
his grievance until the date of his death, or if he
secured substantially equivalent employment, to the
date of such employment, less his net earnings during
the backpay period, together with interest thereon at a
rate of 6 percent per annum.
All employees in any bargaining unit represented by
this Union are by law entitled to and will receive from
this Union nondiscriminatory representation, in the
processing of their grievances and otherwise without
regard to whether or not they are members of this
Union.
Dated By
OIL, CHEMICAL & ATOMIC
WORKERS
INTERNATIONAL UNION,
AFL-CIO, LOCAL No.
4-23
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions , may be directed to the Board ' s Office,
6617 Federal Office Building , 515 Rusk Avenue , Houston,
Texas 77002, Telephone 713-226-4296
'As indicated above, and in the original Decision and Order, Member
Jenkins would find , inter alia , that Respondent Employer violated Section
8(aX I ).